Re Islam Shamsul

CACV 178 /2019

[2019] HKCA 1036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 178 OF 2019

(ON APPEAL FROM HCAL NO 758 OF 2018)

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Before: Hon Barma JA, Li and Lisa Wong JJ in Court

Date of Hearing: 20 August 2019

Date of Judgment: 10 September 2019

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J U D G M E N T

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Hon Li J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 2 April 2019 refusing leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board dated 6 April 2018. The Board dismissed the applicant’s appeal against the decisions of the Director of Immigration dated 29 June 2016 and 25 October 2016. The Director rejected the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong on 25 December 2012 illegally and was arrested by the police on 26 December 2012. He lodged a non-refoulement claim on 29 December 2012. 

3.The applicant’s claim was based on threats from members of the Bangladesh National Party (“BNP”).  He claimed to have killed 2 members of the BNP with a gun.  The details of the applicant’s claim have been summarised by the Judge at [2] to [7] of the CALL-1 Form.

4.By a Notice of Decision dated 29 June 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered BOR 3 risk^[1], persecution risk^[2], and torture risk^[3].

5.By a Notice of Further Decision dated 25 October 2016, the Director also assessed the applicant’s claim based on BOR 2 risk^[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 20 October 2017 at which the applicant was absent, the Board dismissed the appeal on 6 April 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.The Board held that the applicant failed to establish the account he has given in support of his claim. The Board was also satisfied that state protection would be available for the applicant.

The Judge’s decision

8.The applicant filed a Form 86 on 2 May 2018 which contained the following grounds for judicial review, summarised below:

(1)  The Board misdirected itself on the law by holding that the applicant must have experienced torture in the past in order to establish substantial grounds to believe that there is a risk of torture in the future;

(2)  The Board failed to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(3)  The Board cherry-picked COI information and relied on outdated COI;

(4)  The Board failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(5)  The Board failed to analyse Bangladeshi state protection.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(6)  The Board took into account incorrect fact and failed to give weight to fact favourable to the applicant;

(7)  The Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(8)  The Board applied an incorrect standard of proof; and

(9)  The duty lawyer failed at the first instance to give sufficient legal representation.

9.In his affirmation in support of the leave application dated 2 May 2018, the applicant advanced the following further grounds for judicial review which are summarised below:

(1)  The hearing bundle arrived just a few days before the Board hearing, there was insufficient time for him to prepare; and

(2)  It was unfair for the Board to give decision on BOR 2 risk without the risk being first screened or judged by the Director.

10.After considering the facts of the case and the decisions of the Director and the Board, the Judge refused leave for judicial review.  The Judge gave the following reasons at [31] to [50] of the CALL-1 Form:

“31. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

32. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision-makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

33. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR 2 risk. In his further decision dated 25 October 2016, the Director decided on that remaining applicable ground. The Applicant had not submitted additional facts for the Director's consideration. The Director was not obliged to hold another interview. His further decision must be read in conjunction with his earlier decision dated 29 June 2016, where there was a detailed analysis of the Applicant's case.

34. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 29 June 2016. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

35. The Applicant complained there were a lack of or insufficient legal representation. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

36. The Applicant raised his language problem. In the current application, someone helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and in the screening process before the Director. The Applicant had much exaggerated his language problem.

37. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

38. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence the rules had been breached.

39. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

40. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. After all, he was absent from the Board hearing scheduled for 20 October 2017.

41. The Applicant said he did not get the notice for the hearing scheduled for 20 October 2017 or any subsequent letter from the Board asking him to explain for his absence from that hearing.

42. The hearing notice and the subsequent intent letter were duly sent to the Applicant's reported address. There was no returned mail. It was unbelievable that the Applicant received the appeal bundle a few days before the Board hearing (as he admitted) and yet he did not get the notice for the hearing.

43. The Applicant did not appear before the Adjudicator. However, he admitted in court that he had submitted all the information and materials to the Immigration Department. He had nothing new to tell the Adjudicator. He would only tell the Adjudicator his problem in Bangladesh and his wish to live in Hong Kong. He would ask the Adjudicator to allow him to stay here because the situation in Bangladesh was really bad and he did not want to go back.

44. The Applicant failed to demonstrate he had anything substantive to tell the Adjudicator. He was not prejudiced by his absence from the Board hearing. It did not matter whether his absence was advertent or inadvertent.

45. The Applicant complained the Adjudicator had not considered the issues of state protection and state acquiescence. The Adjudicator did. He had a balanced study of relevant COI and concluded reasonable state protection was available to the Applicant. He found there was no evidence of state acquiescence. The Applicant had not reported his alleged enemies to the Bangladesh authorities. There was no evidence the authorities knew of his complained situation. The Adjudicator’s finding was not Wednesbury unreasonable.

46. The Applicant failed to prove a case that necessitated the Adjudicator to call for psychological or psychiatric reports or to make a finding that there existed in Bangladesh a consistent pattern of gross, flagrant or mass violation of human rights.

47. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

48. There was also no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.

49. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

50. The Applicant's complaints are not reasonably arguable.  He has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant him leave for judicial review.”

Grounds for appeal

11.In the Notice of Appeal dated 12 April 2019 the applicant advanced the following grounds of appeal:

“Law of Hong Kong and international refugee protection law permit my claim but putative respondents and Justice Josiah Lam not properly consider my claim”

12.In his skeleton submissions dated 2 July 2019, the applicant submitted that he is illiterate and it is impossible for him to make “legal objection”.  He repeated the grounds of judicial review.  He further submitted that his interpreter did not correctly translate his speech in the hearing.

13.We heard the appeal on 20 August 2019.  At the hearing the applicant had nothing further to add.  He only stressed that he was not willing to go back to Bangladesh.

Discussion

14.The only ground of appeal in the notice of appeal lacked particulars and is bound to fail.

15.As for the complaint of no legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant has still failed to identify the “legal objection” he wanted to make.  This ground is without merit.

16.The applicant also complained that the interpreter did not translate his speech correctly in the hearing.  As the applicant was absent from the Board’s hearing, this can only be taken to refer to the hearing for the judicial review.  It appears from the CALL-1 Form cited above that the applicant was apparently able to present his grounds for judicial review to the Judge efficiently.  The applicant did not identify any error on the part of the interpreter and there is nothing to suggest that the applicant suffered any prejudice.  This ground is also without merit.

17.Lastly, the applicant repeated the grounds for seeking judicial review without identifying any error on the part of the Judge.  We have considered the Call-1 Form in detail.  The Judge had dealt with each ground of the leave application carefully.  He had applied the correct legal principles.

18.There is no merit in any of the grounds of the appeal and we dismiss the appeal accordingly.

The applicant acting in person