Re Islam Rafiqul

Judgment Date03 September 2018
Neutral Citation[2018] HKCA 570
Judgement NumberCACV219/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV219/2018 RE ISLAM RAFIQUL

CACV 219/2018

[2018] HKCA 570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 219 OF 2018

(ON APPEAL FROM HCAL NO 1150/2017)

___________________________

RE: ISLAM RAFIQUL Applicant

___________________________

Before: Hon Lam VP, Yuen and Kwan JJA in Court

Date of Judgment: 3 September 2018

________________

J U D G M E N T

________________

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

1. This is an appeal against the decision of Deputy High Court Judge Josiah Lam on 5 June 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Bangladesh. He entered Hong Kong illegally and was arrested on 17 August 2014. On 20 August 2014 he lodged a non-refoulement claim.

2. His claim was based on alleged threats from supporters of Awami League. He himself came from a family supporting the opposite party, Bangladesh Nationalist Party. According to the applicant, in 2013 these supporters forced the applicant to either join their party or pay a substantial sum of money. After the applicant refused, he was assaulted and threatened. He had made reports to the police who refused to take action.

3. The Director decided against the claim on 20 July 2016. The decision covered BOR 3 risk, persecution risk and torture risk (“Director’s Decision”). By a Further Decision of 21 July 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

4. The applicant appealed to the Torture Claims Appeal Board. After a hearing held on 21 November 2017, the Board dismissed the appeal on 21 December 2017 (“Board’s Decision”).

5. The intended judicial review was in respect of the Board’s Decision only. The Form 86 was filed by the applicant on 28 December 2017.

6. In his affirmation dated 28 December 2017, the applicant gave the following grounds for judicial review:

(1) 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;

(2) The Board cherry-picked COI information and relied on outdated COI;

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

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

(5) The Board took into account incorrect facts and failed to give weight to facts favorable to the applicant. There were no particulars for this ground;

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

(7) The Board applied incorrect standard of proof. There were no particulars for this ground;

(8) The duty lawyer failed at the first instance to give sufficient legal representation. There were no particulars for this ground.

7. The applicant gave the following particulars for some of the grounds for judicial review above:

(1) The hearing bundle with documents all in English was provided to him just a few days before his appeal hearing before the Board and therefore with insufficient time for him to properly prepare for the hearing. The applicant was confused at the hearing and the Board wrongly concluded he was not credible;

(2) The Board had relied on sources of news not officially recognized or were simply hearsay or outdated in arriving at groundless speculations that it would be safe for him to return to Bangladesh;

(3) The Board made a decision on BOR2 risk even though this part of the claim was not screened or judged by the Director.

8. The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [35] to [46] of the CALL-1 Form of 5 June 2018:

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

36. 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’.

37. The Applicant has filed a barrage of complaints. Most of them are vague. I shall first deal with the more specific ones.

38. The Applicant complained the Director had not properly screened his claim on BOR2 risk. That is not true. The Director had invited the Applicant to submit additional facts for the consideration on BOR2 risk but the Applicant failed to do so. The Director then rendered his decision on 21 July 2017. That further decision should be read in conjunction with the Director's earlier decision dated 20 July 2016. The Director had carefully and fully considered the Applicant’s claim by those two decisions, which dealt with all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.

39. The Applicant complained that he had not been given sufficient legal assistance. He had been represented by the Duty Lawyer Service up to the Director's decision rendered on 20 July 2016. The Applicant failed to show this court how his claim was prejudiced or undermined by the lack of legal representation only in the later stages of his claim. 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.

40. The Applicant accused the Adjudicator of failing to evaluate and make a finding as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violations of human rights. The Adjudicator found the Applicant's claim incredible. In light of such finding, it was not necessary for the Adjudicator to go on to discuss further issues such as human rights violation, state acquiescence, state protection, internal relocation and so on.

41. The Applicant also complained the Adjudicator did not call for psychological and psychiatric reports. However, the Applicant failed to justify there was such a need. In fact, the Adjudicator disbelieved his claim.

42. The Applicant further complained that he did not have sufficient time to prepare for the appeal before the Adjudicator. He also said he was confused during the hearing. I have reviewed the Adjudicator’s report dated 21 December 2017. There is no evidence that the Applicant had complained he was short of time for preparation or he was confused during the hearing. He had not requested the Adjudicator for adjournment. In fact, he answered the Adjudicator’s questions. I do not accept the Applicant had no time to prepare for the appeal or that he was confused during the appeal hearing.

43. The other complaints lacked specifics. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant's complaints was substantiated.

44. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator’s report showed he was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had adhered to the high standards...

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