RE ALAM MOHAMMAD NOORE

CACV 383/2018

[2019] HKCA 365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 383 OF 2018

(ON APPEAL FROM HCAL 726/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 20 December 2018, this court (Barma JA and Yau J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 9 August 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 7 January 2019, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant repeated the grounds for applying for judicial review and the grounds advanced in a “supplemental notice of appeal” (the supplemental notice of appeal was never filed with this court and was supposedly dated 23 March 2018, several months prior to the Notice of Appeal itself).  He elaborated on those grounds and explained why it is unsafe for him to return.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 21 January 2019.  In his written submission, the applicant simply reiterated the matters raised in the Notice of Motion.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his Notice of Motion and written submission.

6.  The matters stated by the applicant in his Notice of Motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his Notice of Motion and his written submission.  

7.  We note that all the grounds relied on by the applicant in the Notice of Motion and submissions had never been raised before this court.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion dated 7 January 2019 is dismissed.

CACV 383/2018

[2018] HKCA 960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 383 OF 2018

(ON APPEAL FROM HCAL 726/2017)

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___________________

J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock given on 9 August 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 19 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 1 September 2016 and 16 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 22 December 2013 illegally and was arrested by the police on 23 December 2013.  He lodged a non-refoulement claim on 23 December 2013.

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 Form.

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

5.  By a Notice of Further Decision dated 16 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 26 June 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 19 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [33] of the Board’s Decision, the Board found that the applicant’s case was not credible. 

The deputy judge’s decision

7.  The applicant filed a Form 86 on 6 October 2017 which contained the following grounds for judicial review:

(1)   the Board had unlawfully fettered its discretion by “refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”;

(2)   the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)   the Board’s Decision was unreasonable or irrational in the public law sense, or is a result of procedural errors or unfairness;

(4)   the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)   there was insufficient time for the applicant to prepare for the hearing before the Board because of his limited proficiency in English;

(6)   both the Director and the Board failed to consider and assess under the state due diligence obligations on the 4 applicable grounds;

(7)   both the Director and the Board failed to carry out sufficient research into the Country of Origin Information (COI) condition.  They relied on sources of news which are not officially recognized and are hearsay in nature;

(8)   both the Director and the Board failed to make a fact as to whether a consistent pattern of violation of human rights existed in Bangladesh; and

(9)   both the Director and the Board cherry-picked facts and failed to take into account relevant facts.

8.  In the affirmation in support of the leave application dated 6 October 2017, the applicant repeated the matters raised in the Form 86.  He also added that because of the lack of credible source of information, the Director and the Board made groundless speculation that it was safe for him to return.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [17] of the CALL-1 Form:

“11. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the decisions of the Director and the adjudicator to be without fault. They have both analysed the material, claims and evidence carefully. The applicant’s complaints against them and the procedure undertaken are not made out. He does not give any particulars to support any of his grounds.

12. The applicant’s affirmation is not easy to decipher and it would appear that in the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated. This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings. However, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle. Moreover, he made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

13. The second ground against both the adjudicator and the Director is that they failed to properly consider Bangladesh had obligations to act with due diligence, essentially the decision-makers did not consider the concept of extended State acquiescence. Further on in the affirmation, the applicant also accuses the decision-makers of failing to consider whether there exists in Bangladesh a gross violation of human rights. They are also accused of failing to properly analyse whether there is available State protection in the country.

14. This is not a case where the applicant says State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts or torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons. Neither the Director nor the adjudicator had to consider the concept of extended State acquiescence. In addition, it was not the applicant’s case he was a victim of human rights abuses. There is no merit in this ground.

15. The third ground against both the adjudicator and the Director is that they failed to carry out sufficient enquiry into COI. The information they did consider was hearsay and not officially recognised which led them to wrongly conclude there was reasonable State protection available to the applicant if he was at any risk if refouled. The issue I have with this ground is that there are no particulars to support it. A reading of the Director’s decision clearly shows he considered objective and relevant COI which led to an informed decision of reasonable available State protection; I would not be interfering with his finding. The adjudicator did not find the applicant a genuine claimant therefore had no need to enquire into COI. There is no merit in this ground.

16. I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

10.  In the Notice of Appeal dated 13 August 2018, the applicant said that “there is an appeal for the decision or legal aid and would like the case to be against will that is over”.

11.  In his skeleton submissions dated 15 November 2018, the applicant repeated the events relevant to his non-refoulement claim.

12.  The applicant agreed by a letter of 13 August 2018 that the appeal could be heard by two judges.  We heard the appeal on 13 December 2018.  At the hearing, the applicant sought to submit two documents which stated that there were five pending charges against him in Bangladesh.  The documents were dated 1 October and 4 October 2018 and were from the Bangladesh Jamati Islam party and a Bangladesh advocate respectively.

Discussion

13.  As we explained to the applicant at the hearing, it is not generally possible to submit additional evidence on the hearing of an appeal.  As the matters dealt with in the documents relate to events before the applicant left Bangladesh in 2013, we can see no reason why they could not have been obtained much earlier and put before the Director, the Board or the judge.  We therefore will not have regard to them for present purposes.

14.  We agree with the decision by the judge that there is no merit in the applicant’s application.  So far as the only ground of appeal contained in the Notice of Appeal is concerned, legal aid is processed on the basis of a merit test.  In light of the obvious lack of merit in the applicant’s case, the Director of Legal Aid was entitled to refuse legal aid.  In any event, the existence of a legal aid appeal per se is not a ground for appealing against the judge’s decision. 

15.  In his written submissions, the applicant repeated his claim that his life would be at risk if he were returned to Bangladesh.  As this court has repeatedly stated, judicial review is concerned with the legality and procedural fairness of the process by which the Board reached its decision, and is not a further avenue of appeal on the facts, which are for the Director and Board to determine.  These matters do not, therefore, assist the applicant.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.