Re Hosain Saidul
Read the full judgment text of CACV 446/2019 on BabelCite. This Court of Appeal judgment was delivered on 28 May 2020.
1. This is an appeal by the abovenamed applicant, Mr Hosain Saidul, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 19 September 2019 refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 10 October 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non
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CACV 446/2019 [2020] HKCA 374 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 446 OF 2019 (ON APPEAL FROM HCAL 2462 OF 2018) -----------------------------------
----------------------------------- Before: Hon Yuen JA and Lisa Wong J in Court Date of Hearing: 19 May 2020 Date of Judgment: 28 May 2020 ___________________ J U D G M E N T ___________________ Hon Lisa Wong J (giving the Judgment of the Court): The appeal 1.This is an appeal by the abovenamed applicant, Mr Hosain Saidul, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 19 September 2019 refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 10 October 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 23 January 2018, as clarified by a letter dated 1 February 2018 (“Director’s Decision”). Basis and allegations in support of NRF Claim 2.The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 20, is a fear of being harmed or even killed by the Awami League (“AL”), the current ruling party in Bangladesh, because of his father’s support of the opposing Bangladesh Nationalist Party (“BNP”). Such alleged fear is said to arise out of the following circumstances:
Entry into Hong Kong and lodgment of NRF Claim 3.The applicant entered Hong Kong illegally by boat from Shenzhen on 21 December 2015. He was arrested by the police on the same day. 4.On 24 December 2015, the applicant raised the NRF Claim by way of written representation. Subsequently, he submitted his non-refoulement claim form dated 16 August 2017. 5.In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 9 August 2017 with the applicant who then had legal assistance and representation from the Duty Lawyer Service. Director’s Decision 6.The Director’s Decision covered torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4]. The Director found the NRF Claim unsubstantiated.
Appeal to Board and Board’s Decision 7.The applicant appealed to the Board against the Director’s Decision on 2 February 2018. 8.The Board conducted a rehearing on 6 September 2018, at which the applicant testified before, and answered questions by, the Board through a Bengali interpreter. 9.The Board’s Decision covered all 4 applicable grounds for non-refoulement protection. Other than the fact that he is a national of Bangladesh, the Board did not accept any of the other claims made by the applicant which the Board variously found to be lacking in credibility, “fanciful”, “unconvincing”, “fabricated”, changing “in significant aspect throughout the appeal process”, “ inconsistent … in relation to basic issues” and “significantly different in key areas”. Application for leave for judicial review and Judge’s Decision 10.By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 2462/2018 on 5 November 2018, supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on grounds summarised by the Judge in [10] of the Form CALL-1 dated 19 September 2019, [2019] HKCFI 2258 (“Form CALL-1”) as follows:
11.After an oral hearing at which the applicant was present and was assisted by a Bengali interpreter, the Judge refused leave. His reasons can be found in [11]-[23] of the Form CALL-1:
Appeal to Court of Appeal and grounds of appeal 12.By a notice of appeal filed herein on 24 September 2019, the applicant appealed against the refusal of leave for judicial review on the following ground (sic):
13.In his written submission dated 8 January 2020, the applicant repeated that he came to Hong Kong to save his life, this time asserting that his father was a leader of the BNP subjected to torture by the AL and that he himself had been tortured by AL workers, the police and the administration who all wanted to kill him. He also complained (1) that the Director and the Board did not properly screen the NRF Claim; (2) that he was not provided with any legal service before the Board and the lawyer assigned to assist him before the Director did not really help him; (3) that the interpreter provided to him at every stage of the screening process was not qualified so that his claim and his answers to questions were not correctly translated and understood; and (4) that the Judge merely followed the Board’s Decision without providing any personal input. 14.The applicant appeared in person at the hearing of the appeal on 19 May 2020. He was provided with a Bengali interpreter. He had nothing to add to his notice of appeal or written submission. Court of First Instance’s role in judicial review in non-refoulement claim 15.The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim 16.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[5]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)]. Discussion 17.It can be seen from [9] above that the applicant’s appeal against the Director’s Decision failed entirely on the facts in that the Board came to the conclusion that the alleged events upon which the NRF Claim was based did not occur because it found the applicant’s evidence to be incredible. As stated in [15] above, the Judge was not tasked with the re-assessment of the NRF Claim by revaluating the veracity of the applicant’s account of events. His duty was to scrutinise the Board’s Decision for errors of law, procedural unfairness or irrationality in coming to such conclusion about the applicant’s credibility. With respect, the applicant had not, by his said numerous proposed grounds for judicial review, pinpointed to the Judge any such errors of law, procedural unfairness or irrationality. Those based on the Board’s reference to, and/or treatment of, COI were misconceived as the Board’s dismissal of the applicant’s testimony did not depend on any COI. As for the alleged lack of adequate legal and translation services, in addition to what the Judge has said, other than his bare complaints, the applicant has not identified any particular factual or legal matter that a lawyer or interpreter meeting his expectations would have brought up. 18.In short, the applicant has not advanced any or any arguable ground, properly so called, that tackles the Board’s adverse findings of fact. Even if he had, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. The appellate court is concerned with whether the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong, which questions are to be considered in light of the grounds of appeal actually raised by the applicant. See again Nupur Mst v Director of Immigration at [14(2)]. 19.It is not sufficient for the applicant to just express dissatisfaction with the Judge’s decision or complain that the Judge was wrong. The applicant did not in the notice of appeal or written submission before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nor can we discern any. Disposition 20.For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.
The applicant, unrepresented, appeared in person [1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) (“IO”) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination. [2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees (“1951 Convention”) and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. [3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance. [4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance. [5] [1954] 1 WLR 1489. |
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