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CACV 233/2018
[2018] HKCA 714
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 233OF 2018
(ON APPEAL FROM HCAL 1092/2017)
___________________
| RE: |
MD SHOHEL SHEAK |
Applicant |
___________________
| Before: |
Hon Lam VP, Kwan JA and L Chan J in Court |
| Date of Hearing: |
12 October 2018 |
| Date of Judgment: |
16 October 2018 |
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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 12 June 2018 refusing leave to the applicant to apply for judicial review.
Background
2. The applicant is a national of Bangladesh. The applicant came to Hong Kong illegally on 29 July 2009 and was arrested by the police on the same date. He lodged his torture claim on 1 August 2009. His claim was processed as a non-refoulement claim under the unified screening mechanism. His claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by the people of the Awami League (“AL”) because he was a supporter of the rival political party Bangladesh Nationalist Party (“BNP”).
3. The facts of this case were set out in [1] – [10] of the CALL-1 form dated 12 June 2018.
4. By a notice of decision dated 13 March 2015, the Director of Immigration assessed the BOR 3 risk[1], the persecution risk[2] and the torture risk[3]. The director determined the risks against the applicant and rejected his claim for non-refoulement protection.
5. The director had also assessed the applicant’s claim based on the BOR 2 risk[4]. By a notice of further decision dated 10 July 2017, the director decided against the applicant.
6. The applicant appealed to the Torture Claims Appeal Board. An oral hearing was held on 23 November 2017, and the applicant testified at the hearing. The board found that the applicant’s evidence was not credible. The appeal was dismissed on 8 December 2017.
The judge’s decision
7. On 15 December 2017, the applicant lodged a Form 86 to apply for leave to bring an application for judicial review. The intended application for judicial review was against the decision of the board.
8. The judge heard the application on 17 May 2018. After hearing the applicant and having given due consideration of the decisions of the director and the board, the judge refused to grant leave to the applicant to apply for judicial review. The judge’s reasons for refusal were set out in [33] – [47] of the CALL-1 form as follows:
“ 33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.
35. The Applicant has filed a barrage of complaints. Most of them are vague. The Applicant cannot elaborate or specify his complaints in court.
36. It is not true that the Director had not considered the Applicant’s claim with respect to BOR2 risk. The Director in his letter dated 11 May 2017 invited the Applicant to submit additional facts for the consideration of BOR2 risk. However, the Applicant failed to respond. In such circumstance, the Director was entitled to further consider the Applicant’s claim in relation to BOR2 risk without holding further hearing. In court, the Applicant confirmed that he had submitted everything to the Director and the Adjudicator. He thus had presented his case fully to them.
37. The Director by his decision dated 13 March 2015 and further decision dated 10 July 2017 fully and carefully dealt with the Applicant's claim with respect to all the four applicable grounds including BOR2 risk.
38. The Applicant complained there was insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 13 March 2015.
39. The Applicant failed to show this court how his case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process. The Court of Appeal had repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.
40. The Applicant complained that he received the appeal bundle only a short time before the appeal hearing.
41. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
42. The Director in his letter dated 31 May 2018 confirmed that the Applicant received the appeal bundle on 16 November 2017 (Fri). The hearing before the Adjudicator was scheduled on 23 November 2017 (Fri). The appeal bundle was served 7 calendar days (or 6 working days) prior to the date of the hearing. It was in time.
43. The Director also pointed out in his letter that the appeal bundle consisted mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim by the immigration officer.
44. In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents for him. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.
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