RE MD KADER

CACV 492/2018

[2019] HKCA 582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 492 OF 2018

(ON APPEAL FROM HCAL NO. 860 of 2017)

________________________

Re

MD KADER

Applicant

________________________

Before: Hon Chu JA and M Poon and L Wong JJ in Court

Date of Judgment: 31 May 2019

________________

J U D G M E N T

________________

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

1.  On 4 March 2019, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 21 September 2018 refusing him leave to apply for judicial review.     

2.  On 15 March 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission in support of his application. 

3.  Having considered the applicant’s notice of motion, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

4.  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.

5.  The Notice of Motion stated that: (i) It is not true that there is no substance in his grounds for the application; (ii) The applicant did not complain about the performance of the duty lawyer because of fear that he would be picked out for “misappropriation” by the adjudicator; and (iii) The applicant genuinely did not have enough time to address the hearing bundle.

6.  The applicant’s affirmation set out two grounds of appeal, namely, (i) the Court was wrong in law in holding there is no state acquiescence or involvement, and (ii) the Court failed to find out the details of the current situation in Bangladesh.

7.  The applicant’s written submission recited the background and basis of the applicant’s claim, some provisions in the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture, the Hong Kong Bill of Rights Ordinance, Cap. 383 and the Basic Law as well as passages in cases on state acquiescence and Wednesbury unreasonableness.  It also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required because the decision had the effect of finally disposing of the applicant’s claim, making him liable to be removed.  It further argued that under the common law there are minimum standards of procedural fairness, and a decision maker was under a duty to act fairly, citing Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 383D; Pearl Securities Limited v Stock Exchange of Hong Kong Limited [1999] 2 HKLRD 243, 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217.   

8.  The grounds and matters set out in the Notice of Motion, the affirmation and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal. 

9.  Firstly, they all relate to the circumstances of the case, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Secondly, the ground about the performance of the duty lawyer and the ground about failure to ascertain the condition in Bangladesh had not been argued before the Judge nor in the appeal before this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal before it.[2]  Nor 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]  Thirdly, as pointed out in [11] of this Court’s Judgment, the ground about state acquiescence bears no relevance to this case.  This Court therefore did not, and did not have to, consider and make finding on state acquiescence.  Nor did we have to, and in fact, consider the latest situation in Bangladesh.  Fourthly, for the reasons given by the Judge in [15] of the Form CALL-1[4], we agree the complaint of late delivery of the appeal bundle for the appeal before the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office has no merit.      

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

11.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.

(Carlye Chu)	(Maggie Poon)	(Lisa Wong)
Justice of Appeal	Judge of	Judge of
	Court of First Instance	Court of First Instance

The applicant, unrepresented, acted in person.

CACV 492/2018

[2019] HKCA 247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 492 OF 2018

(ON APPEAL FROM HCAL NO. 860 of 2017)

________________________

Re

MD KADER

Applicant

________________________

Before:

Hon Chu JA and M Poon and L Wong JJ in Court

Date of Hearing:	25 February 2019
Date of Judgment:	4 March 2019

________________

JUDGMENT

________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 21 September 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 2 November 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 May 2017 rejecting his non-refoulement claim.  

2.  The applicant is a Bangladeshi national.  He first entered Hong Kong on 19 November 2005 and was permitted to stay as a visitor for two weeks, during which he twice departed for Shenzhen.  He last entered Hong Kong from Shenzhen on 12 December 2005 and was permitted to stay until 26 December 2005.  He overstayed and was arrested by the police on 30 April 2006.  He raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”)[1], which was rejected by the Director on 22 March 2012. The appeal to the Board was dismissed on May 2012.

3.  On 5 June 2013, the applicant made a non-refoulement claim based on his fear of being killed by his four cousins arising out of a land dispute and his refusal to join their political party, the Bangladesh Nationalist Party (“BNP”).  The applicant’s claim was detailed in [4], [8] to [10] of the Director’s decision and in [12] to [14] of the Board’s decision, and summarized by the Judge in [2] to [7] of the Form CALL-1 dated 21 September 2018, [2018] HKCFI 2109 as follows: 

“2. The applicant was born and raised in Village Deshgaon, Hajiganj, District Chandpur, Bangladesh. His grandfather has two sons, his father and his uncle. He is the only son in his family with two sisters, while his uncle has four sons (his cousins) who lived adjacent to the applicant and were members of BNP who were also involved in drug trafficking.

3. The applicant’s grandfather owned a piece of land in the village, and after his death in 1995 the land passed to his father and his uncle in equal share, but as there were four cousins on his uncle side while he was the only son on his father’s side, his four cousins did not think it was fair to share the land equally and demanded that they be given a bigger share, and when his father refused, the cousins continued to dispute the land and started to bully the applicant, and on one occasion in 1997 they assaulted him with wooden sticks that he suffered injuries to his head and his left hand.

4. In late 1998 the applicant was approached by the cousins to assist in their drug trafficking activities and to join BNP, and when he turned them down fearing that he might be set up for arrest by the police, he was beaten up by the cousins on the spot resulting with a head injury. After the incident he was advised by his parents to take shelter at a friend’s place in Dholaipar, Dhaka to avoid the cousins where he found a job working in a fruit store.

5. In 2001 while he returned to his home village to visit his parents, his cousins came to demand that he joined BNP and threatened him when he refused as he was not interested in politics. After a short stay he left to return to Dholaipar.

6. One day in late 2004 when the applicant was told by his father that his cousins had threatened to come to kill him in Dholaipar, he therefore fled to Tongi where he stayed for several weeks before returning to Dholaipar.

7. In early 2005 the applicant received another message from his father that as his cousins were still looking for him, it would not be safe for him to remain in Bangladesh, and so he made arrangements through an agent and departed for Hong Kong in November 2005 when he made two side trips to China before returning in December 2005 to Hong Kong where he overstayed and subsequently raised his torture claim, and when it was rejected he then lodged his non-refoulement claim for which he completed a Supplementary Claim Form (“SCF”) on 29 April 2017 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service.”

4.  By a Notice of Decision dated 22 May 2017, the Director rejected the applicant’s claim on all applicable grounds except torture risk which had already been disposed of (see [2] above), namely, persecution risk[2], BOR 3 risk[3] and BOR 2 risk[4]. The Board heard the applicant’s appeal on 1 November 2017.  By its decision dated 2 November 2017, the Board dismissed the appeal.

5.  The applicant filed a Form 86 on 9 November 2017 seeking leave to judicially review the Board’s decision. In the supporting affirmation filed on the same day, he set out his grounds for judicial review, which the Judge summarized as follows (see [12] of the Form CALL-1):

(1)    Procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)    Irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)    Irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)    Irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

(5)    Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)    Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)    Procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)    Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

6.  At the applicant’s request, an oral hearing was held on 19 April 2018 to hear the leave application.  Having considered the applicant’s grounds for judicial review, the Judge concluded that the intended judicial review had no prospect of success, and refused to grant leave to apply for judicial review.  He gave his reasons in [13] to [17] of the Form CALL-1 as follows:

“13. [The applicant’s grounds for judicial review] are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14. The only other complaint which the applicant appeared to have made with any elaboration was about 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 other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15. 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 SCF, records of his screening interviews 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 SCF 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 to the adjudicator. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

16. Further, as it has been established by both the Director and the Board in their decisions that the risk of harm from the applicant’s cousins is a localized one and that it is not unreasonable or unsafe for him to relocate to another 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, when in particularly that he was given the benefit of doubt by the Board as to his asserted events of his claim which was rightly rejected for the reasons noted above.”

7.  The applicant filed a Notice of Appeal dated 2 October 2018, in which he referred to his supporting affirmation for grounds of appeal.  The affirmation set out two grounds of appeal as follows:

(1)   The Judge was wrong in law in holding there was no state acquiescence or involvement; and

(2)   The Judge failed to provide detailed reason for his decision

(respectively “Ground (1)” and “Ground (2)”) 

8.  Exhibit A to the affirmation reproduced the content of the affirmation filed in support of the Form 86, including the grounds for judicial review.  In addition, Exhibit A set out some provisions of the Basic Law and the CAT, some case law on high standard of fairness, state acquiescence and Wednesbury unreasonableness.  It also raised some new complaints against the decision of the Board (at pages 22 to 23 and 25 to 27).

9.  The applicant had also put in a written submission dated 30 January 2019.  It referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the discussions on the high standards of fairness in support Ground (1), and to the common law duty to act fairly discussed in The Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D and Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 in support of Ground (2).

10.  We heard the appeal on 25 February 2019.  The applicant had nothing to add to what had already been put in this appeal, other than to reiterate that his four cousins were involved in politics and his dispute with the cousins related also to political affiliation. 

11.  The two grounds of appeal have no merits.  Firstly, Ground (1) is irrelevant and misplaced.  The Judge did not make any holding on state acquiescence or involvement.  Secondly, Ground (2) is untenable.  We had read the grounds for judicial review put forward by the applicant in the affirmation in support of the Form 86.  We agree with the Judge that they were couched in general and vague terms, with little or no particulars.  In the circumstances, it is not incumbent upon the Judge to deal with each and every one of them specifically.  In our view, the Judge had given sufficient reasons for his rejection of the applicant’s complaints levelled against the Board.  The cases cited in the written submission are not relevant to the two grounds of appeal.

12.  As for Exhibit A to the affirmation, the repetition of the grounds for judicial review cannot serve to advance the appeal.  It is also impermissible for the applicant to advance new complaints and to introduce new particulars to the complaints on procedural impropriety and unfairness raised in the affirmation. An appeal against the refusal of leave to apply for judicial review is not the occasion for repeating arguments advanced and rejected by the judge below, or for advancing arguments that could and should have been raised, but were not raised, before the judge.  Accordingly, this Court will not generally entertain new arguments which are fact and evidence sensitive which were not canvassed at the Court of First Instance and for which leave has not been sought within time.

13.  Further, the focus of the Court of Appeal in an appeal from refusal of leave to bring judicial review is on the decision of the judge.  The Court of Appeal will only interfere with the judge’s decision if the applicant is able to show that there are errors of law or failure to consider relevant matters placed before the court or the decision was otherwise plainly wrong. Hence, this Court will only examine the decision of the Judge in light of the grounds put forward by the applicant.  It is not our role to examine the Board’s decision afresh as if we were dealing with the application for judicial review.       

14.  For the reasons we have given above, the appeal has no merit.  Accordingly, we dismiss the appeal.

 
 

(Carlye Chu)	(Maggie Poon)	(Lisa Wong)
Justice of Appeal	Judge of Court of First Instance	Judge of Court of First Instance

  

The applicant, unrepresented, appeared in person.