RE MIAH MOHAMMAD PAKHI

CACV 477/2018

[2019] HKCA 429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 477 OF 2018

(ON APPEAL FROM HCAL NO. 70 OF 2018)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

1.  By a judgment dated 18 January 2019 ([2019] HKCA 17), this Court (Yeung Acting CJHC and Poon JA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 21 September 2018 refusing to grant leave to him to apply for judicial review. The intended judicial review was against the decision of the Board dated 2 January 2018. The applicant now seeks leave to appeal to the Court of Final Appeal.

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

3.  By a notice of motion dated 8 February 2019, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

4.  In the Notice of Motion, the applicant set out the following grounds :

“My life is still in danger on (in) my Country Bangladesh. Made by non-refoulement claim that if I was to be returned to Bangladesh, I would be harmed by/killed by the Member of Bangladesh Awami League (“AL”) because of my political affiliation to the rival political group Bangladesh Jamaat-e-Islam Party (JIP).  Until my area very strong for AL, good relationship we’d located police, if I not join, AL member force entered my house.  They carrying bamboos sticks and try to would killed me (sic).”  

5.  The applicant further set out in his Notice of Motion about his disagreements and complaints against the decisions made by the Torture Claims Appeal Board and the Judge respectively.

6.  Pursuant to the Order made by Master Au-Yeung on 8 February 2019, the applicant was directed to lodge written submissions in support of the Notice of Motion on or before 22 February 2019.  The applicant failed to lodge his written submissions as directed.  Pursuant to Practice Direction 2.1, this application is processed on papers without any oral hearing.

7.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.  Here, the grounds and complaints put forward by the applicant in the Notice of Motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant merely regurgitated the arguments that he would face risk of harm if refouled to Bangladesh which was canvassed at the lower court hearing and duly rejected by the Judge. 

8.  For the reasons that we gave in our judgment of 18 January 2019, we did not see any prospect of success in the applicant’s intended appeal against the Judge’s order.  None of the questions raised by the applicant in the notice of motion involve an arguable point or a question of great general or public importance.  We do not see any basis for granting leave under the “or otherwise” limb either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

CACV 477/2018

[2019] HKCA 17

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 477 OF 2018

(ON APPEAL FROM HCAL NO. 70 OF 2018)

__________________________

__________________________

___________________

J U D G M E N T

___________________

Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 21 September 2018, refusing to grant leave to the applicant to apply for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 23 October 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 2 January 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on papers based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur[2018] HKCA 247; Re Miha Md Limon[2018] HKCA 278; Re Ali Arshad[2018] HKCA 304; and Re SK Sarfaraj[2018] HKCA 307.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2105.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Bangladesh.  He entered Hong Kong illegally on 4 September 2014 and was arrested by the police on 6 September 2014.  The applicant was then referred to the Immigration Department and on 10 September 2014, he lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed by the people of Awami League (“AL”) who had grudges against him.  The applicant claimed that he was threatened and targeted by AL as he refused to abandon his political party “Jamaat-e-Islami” (“JIP”) to join them.  He further claimed that if he were to return to Bangladesh, he would be located and killed due to AL’s widespread network and powerful influence in his home country.

5.  By a Notice of Decision dated 27 September 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decision.  After an oral hearing on 13 December 2017, the Board dismissed the appeal on 2 January 2018.  The Board found that there was no independent evidence on the applicant’s affiliation with JIP apart from his bare assertions and he could not provide any details about JIP nor any consistent version about his involvement and participation in it.  Even on the account of the applicant’s story, the ill-treatment allegedly received by him did not attain the minimum level of severity under any of the applicable grounds.  After careful consideration of the relevant COI, the Board took the view that reasonable state protection would be available and internal relocation to other parts of Bangladesh such as Chittagong would also be a viable option available to him. The Board concluded that the applicant failed to establish his non-refoulement claim under all applicable grounds.

The Judge’s decision

7.  The intended application for judicial review was in respect of the decision of the Board.  In the Form 86 filed on 15 January 2018, the applicant provided the following grounds of his intended challenge (as duly summarize by the Judge at [10] of the CALL-1 Form):

(1)   failing to apply high standards of fairness by not ensuring that the hearing bundle and skeleton argument of the Director be delivered to him within reasonable time and with appropriate interpretation so that he could properly prepare for his appeal before the Board;

(2)    failing to apply high standards of fairness in its decision making process and erred in approaching the appeal by simply trying to see whether it could find fault with the decision of the Immigration Officer when the Director was excused from attending the appeal hearing which showed a general practice of the Board not to question or find fault with the decision of the Director; and

(3)   failing to take into consideration when making the decision that the applicant was not legally represented in the appeal process; failing to take into account that he has insufficient legal knowledge and failing to inform him of his right to make an complaint.

8.  In the supporting affirmation of the applicant filed on 15 January 2018, the applicant provided further explanation and elaboration regarding the three grounds of intended challenge as set out in Form 86.

9.  On 21 September 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [11] – [18] for his refusal to grant leave:

“11. For the applicant’s complaint in ground (1) of the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and mother documents all of which were in English and thereby given insufficient time to prepare for his appeal.

12. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interview and the Director’s decision should be well familiar to the applicant as they had earlier already been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to better prepare for his appeal at his oral hearing. Accordingly, I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

13. As for his complaint in ground (2) of the Board’s approach to his appeal by simply finding fault with the decision of the Director, which is clearly not the case as it is plain from its decision that the adjudicator did proceed to deal with the appeal as a re-hearing of all the evidence and issues of the applicant’s claim, and I fail to see any relevancy or rationale involving the Director in the process as the mechanism for the appeal as a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how that would support his complaint which I find to be wholly without merit.

14. As for his complaint of the Board failing to apply high standard of fairness without taking into consideration of him not being legally represented in his appeal process and for not advising him that he could complain, it has been held by the Court of Appeal that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah[2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; Re Lopchan Subash[2018] HKCA 37; and Re Zafar Muazam[2018] HKCA 176.

15. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal before the Board and to answer questions put to him by the adjudicator at his oral hearing with the assistance of an interpreter and without any difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

16. The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

18.   For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The Appeal

10.  The applicant filed the Notice of Appeal on 27 September 2018 in which he set out the following ground of appeal :

“There is an appeal for the decision of legal aid and would like the case to be against will that is over.”

Discussion

11.  The ground of appeal is the applicant’s complaint about the rejection of his application for legal aid which was the decision made by the Director of Legal Aid.  It is not related to the decision made by the Judge in the CALL-1 Form and does not constitute a viable ground for reversing the Judge’s decision. 

12.  In any event, we are satisfied that the Judge has duly considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny and there was no error of law or procedural unfairness on their parts or any failure to adhere to the high standard of fairness in their consideration and assessment of the applicant’s claim.  We can see nothing amiss in the Judge’s reasons for refusing to grant leave for judicial review.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.