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CACV 212/2018
[2018] HKCA 537
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 212 OF 2018
(ON APPEAL FROM HCAL NO 1112/2017)
__________________________
| RE: |
LITOUN MOUNSY
(also known as AKMAL ALI
and also known as SHAMEN HOSAIN)
|
Applicant |
__________________________
| Before: Hon Lam VP, Yuen and Chu JJA in Court |
| Date of Hearing: 17 August 2018 |
| Date of Judgment: 21 August 2018 |
________________
JUDGMENT
________________
Hon Lam VP (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Josiah Lam of 5 June 2018 refusing leave to the applicant to apply for judicial review.
2. The applicant is a national of Bangladesh. According to the records of the Immigration Department, the applicant had previously entered Hong Kong by using passports under different identities (of Akmal Ali in 2002-2003 and of Shamen Hosain in 2005-2006). He had been found to be in breach of condition of stay by taking up unapproved employment, and was deported back to Bangladesh in April 2003 and March 2006 respectively.
3. The applicant entered Hong Kong again by using a passport under the current identity of Litoun Mounsy in November 2006. Between November 2006 and June 2007, he travelled between Hong Kong and the Mainland on a number of occasions, to Nepal on two occasions, and returned to Bangladesh three times in December 2006, April 2007, and June 2007. On 30 May 2013. He left Bangladesh for the Mainland; and on 8 July 2013, he entered Hong Kong illegally. He was arrested by the police on 31 July 2013. He lodged a claim with the Director of Immigration for non-refoulement protection on 19 September 2013.
4. By a notice of decision dated 23 June 2017, the director rejected the applicant’s non-refoulement claim. The director’s decision covered the BOR 3 risk[1], the BOR 2 risk[2], the persecution risk[3], and the torture risk[4].
5. The applicant appealed to the Torture Claims Appeal Board. An oral hearing was held on 6 December 2017. Having considered the applicant’s travel history, his use of passports under false names, the delay in making non-refoulement claim, the lack of credibility of the documents provided by the applicant, and the inconsistencies in his evidence, the board found the applicant had fabricated his claim for non-refoulement protection. The board rejected the applicant’s claim in its entirety, and dismissed the appeal on 8 December 2017.
The decision of the deputy judge
6. On 20 December 2017, the applicant applied to the court for leave to apply for judicial review against the board’s decision. In his form 86, as well as in his supporting affirmation both dated 20 December 2017, the applicant complained that:
(a) the hearing bundle for use at the oral hearing before the board was only given to him 8 days prior to the hearing, giving him insufficient time to prepare for the hearing; and
(b) The board relied on source of news that was not officially recognized or was simply hearsay. It also relied on cases which were outdated.
7. The deputy judge heard the application on 23 May 2018 and refused to grant leave to apply for judicial review on 5 June 2018. After summarizing the background of the case and having due regard to the decisions of the director and the board, the deputy judge gave the following reasons in refusing leave to judicial review in paragraphs 38 to 46 of the CALL-1 form:
“ Discussion
38. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
39. 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’.
40. Despite being a university graduate in Bangladesh, the Applicant said he did not know much English. Nevertheless, he was able to get someone to prepare Form 86 and the affirmation for his current application for judicial review. I am sure the Applicant could get language assistance at all material times. I find he had much exaggerated his language problem.
41. The Applicant complained he only had about 8 days to prepare for the appeal before the Board. Even if his allegation was true, there is no evidence to show that was not enough for his preparing for the appeal before the Board. There is no evidence to show the Applicant had expressed such dissatisfaction to the Adjudicator or for that reason applied for adjournment in the Board hearing. Paragraph 16 the Adjudicator’s report reveals he asked for time but only for the purpose of submitting documents. The Adjudicator made enquiry and learnt that those documents were allegedly issued in 2013. He was of the view that the Applicant had had more than enough time to get hold of the alleged documents if he would like to rely on them. The Adjudicator refused to adjourn the hearing.
42. The Adjudicator was entitled to refuse that adjournment request, which had nothing to do with the Applicant's present complaint that he was only given the appeal bundle several days before the hearing.
43. The Applicant said he was confused during the appeal hearing. However, the Adjudicator’s report shows the Applicant was fully aware of what was going on. He responded to the Adjudicator and expressed his own wish. I am sure the Applicant had prepared well for the appeal and he was not confused at all during that appeal hearing.
44. The other complaints raised by the Applicant are vague. He could not be specific in court. Nevertheless, I have reviewed the Adjudicator’s...
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