KAMRUZZAMAN ANI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 190 /2018

[2018] HKCA 554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 190 OF 2018

(ON APPEAL FROM HCAL NO 494 OF 2017)

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J U D G M E N T

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

1.  This is an appeal against the refusal of leave for judicial review by Deputy High Court Judge Woodcock on 24 May 2018. The hearing date of 29 August 2018 has been vacated and we are dealing with this appeal on paper for the reasons which appear below.

Disposing of this appeal on paper

2.  The notice of appeal was filed by the applicant on 28 May 2018.  In it, he stated that reference should be made to his affirmation for the grounds of appeal.  His affirmation was filed on the same day.  He stated two grounds of appeal in one short paragraph in §2 and annexed a document thereto marked “Exhibit A” of 30 pages.  The last six pages comprise the judgment of the judge in the form Call‑1 ([2018] HKCFI 1053).  The first 24 pages are for the purpose of “explaining some of the reason [sic] for this application.”

3.  On 7 June 2018, the Registrar of Civil Appeals gave directions for the lodging of the appeal bundle on or before 25 June 2018. This was complied with by the applicant.  The parties served with the notice of appeal (the Director of Immigration and the Torture Claims Appeal Board) informed the court by letter that they intend to take a neutral stance in the appeal and sought to be excused from attendance of any hearing.

4.  On 25 June 2018, the applicant filed an application to fix a date for the hearing of the appeal.

5.  Further directions were given by the Registrar on 26 June.  The applicant was informed of the directions by a letter dated 27 June 2018 sent to him by post.  The directions included the requirement that upon the date of the hearing being fixed, the applicant shall lodge his skeleton argument not less than 28 days before the hearing.  The Registrar’s letter set out §§60 to 65 of Practice Direction 4.1 which explain in some detail the purpose and requirement of a skeleton argument.  The salient parts of these paragraphs are as follows:

“60. The purpose of a skeleton argument is to identify and summarise the points, not to argue them fully on paper. …

61. A skeleton argument should at the same time be comprehensive in that it should state all the points which a party intends to take and summarise the argument on each of those points. A point not taken or an argument not advanced in a party’s skeleton argument may not be pursued at the hearing of the appeal without the leave of the Court.

62. The appellant’s skeleton argument should commence with a brief statement of the nature of the proceedings below, a brief statement of the facts material to the resolution of the issues in the appeal and a concise statement of those issues. The skeleton argument should then outline the points which the appellant intends to take and a brief statement of the appellant’s argument on each of those points.

63. Skeleton arguments should not normally exceed 10 pages in the case of an appeal on law and 15 pages in the case of an appeal on fact legibly printed on A4 paper (single side only) in no less than 14 font size and 1.5 line spacing. …

64. In the case of points of law, the skeleton argument should state the point and cite the principle or authority in support, with references to the particular page(s) where the principle concerned is enunciated. …

65. In the case of questions of fact, the skeleton argument should state briefly the basis on which it is contended the Court can interfere with the finding of fact concerned …”

6.  The Registrar’s letter specifically mentioned that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper, and, in such circumstances, the hearing date shall be vacated and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

7.  A notice of hearing giving the hearing date and time of 29 August 2018 at 11 a.m. was issued on 28 June 2018.  The notice of hearing contained a reminder that the applicant should comply with the Registrar’s directions on 26 June in the letter of the court dated 27 June.

8.  The deadline for lodging skeleton argument fell on 31 July 2018.  On 7 August 2018, the court issued a letter to the applicant with an unless order that unless he should lodge his skeleton argument on or before 13 August 2018, the hearing on 29 August 2018 would be vacated and this appeal would be dealt with on paper.

9.  The applicant did not comply with the unless order.  Instead, on 10 August 2018, he applied for legal aid to prosecute this appeal and wrote a letter to the court requesting to change the hearing date and give him time to lodge his skeleton argument as he has applied for legal aid to get a legal representative to prepare the skeleton argument.

10.  The court refused to entertain his applications which are wholly without merit and he was informed by letter dated 14 August 2018 of the refusal.  We further order that the stay of proceedings by virtue of the application for legal aid be lifted, pursuant to the power vested in the court under section 15(6) of the Legal Aid Ordinance, Cap 91, and proceed to consider this appeal on paper.

11.  We are satisfied in all the circumstances there would be no unfairness to the applicant for this court to deal with his appeal without an oral hearing.

12.  The applicant was given clear and firm directions on the requirement to lodge a skeleton argument.  He allowed the deadline to lapse without taking any action.  He was given further opportunity to comply when the court extended the deadline to 13 August 2018.  Instead of seizing the opportunity to lodge his skeleton argument within the extended time, he came back with the excuse he had no idea how to prepare it and needed legal representation to do so.  If this were a genuine reason, he would not have waited until 10 August to take action.

13.  The relevant paragraphs of Practice Direction 4.1 quoted in the Registrar’s letter set out comprehensively and in clear and simple language what the court would expect to find in a skeleton argument.  The applicant must have been aware of this.  We do not consider he should have any real difficulty in preparing a compliant skeleton argument, given he has filed a document marked “Exhibit A” to his affirmation of 28 May 2018, which expanded in detail the grounds he wished to pursue in his appeal, and the 24‑page submission is even longer than the page limit permitted for a skeleton argument.

14.  We wish also to point out that the documents filed by the applicant on 28 May 2018 (the notice of appeal and his affirmation) are not in compliance with the requirements in Practice Direction 4.1, which are as follows:

“20. A notice of appeal should be a concise document setting out clearly and succinctly the reasons why the Court should interfere with the judgment of the court below.

21. In an appeal against findings of fact, the grounds of appeal must pinpoint the palpable errors of the court below which warrant the interference by the Court. A bare statement that the findings are against the weight of the evidence or that the court below was wrong to reject or did not pay sufficient regard to the evidence of a witness is not a proper ground of appeal.

22. A notice of appeal must not be prolix, unfocused or canvass evidence or submissions at length.”

15.  The document marked “Exhibit A” attached to the applicant’s affirmation and adduced as part of the notice of appeal clearly does not meet the above requirements.  It is akin to a skeleton argument, as it sets out in considerable detail the background of the applicant’s claim and the arguments on the points he wishes to pursue on appeal, with the statutory provisions and authorities he wishes to rely on.

16.  There is no unfairness in proceeding with the appeal without a hearing and refusing to give the applicant further indulgence.

The Director’s decision

17.  The applicant is a Bangladeshi national.  He claimed that he entered Hong Kong illegally on 17 July 2014 and was arrested by the police on 20 July 2014.  He lodged his non-refoulement claim on 26 July 2014.  His claim was based on his fear of harm, or even being killed, by people from a rival political party, the Awami League (“AL”) in his home area. According to the applicant, he was an active member of the political party in Bangladesh called Jamaat-e-Islami (“Jamaat”).

18.  By the Notice of Decision dated 21 June 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3].  The Director assessed that the alleged ill‑treatment neither attained a minimum level of severity nor was as real and imminent as the applicant claimed.  It was considered that the risk of persecution is low and there is no substantial ground for believing that the applicant will be subject to torture upon his return to Bangladesh.

19.  It was also considered that there is no indication that the applicant would be deprived of a proper police investigation and the right to stand a fair trial should there be any subsequent charge laid against him.  It was also assessed that reasonable state protection would be available to the applicant in Bangladesh and the possibility of relocation would lower or negate the perceived risk.

20.  The Director had also assessed the applicant’s BOR 2 risk[4] and a Notice of Further Decision was issued on 2 June 2017 whereby the Director decided against the applicant.

The Board’s decision

21.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions.  After a hearing on 22 June 2017, the Board dismissed the appeal on 1 August 2017.  The Board found that the applicant’s case was not genuine and there is nothing extraneous to the applicant’s case that would establish a risk of persecution, BOR 3 risk, risk of torture and/or BOR 2 risk.  The Board further considered that even if the applicant’s case were accepted, his claim would still be rejected as there are viable internal relocations for him in Bangladesh.

The intended judicial review

22.  The intended judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed by the applicant on 8 August 2017 did not contain any grounds for judicial review.  In his affirmation filed on the same day, the applicant sought to rely on the following eight grounds:

(1) the adjudicator failed to carry out sufficient research and inquiry into the COI (“Country of Origin information”) conditions so the decision was founded upon an unfair procedure;

(2) the adjudicator failed to take into account and to put any weight on the relevant COI research, cherry-picked and took into account information of little or no relevance and relied on outdated COI research publications so the decision was unreasonable to a Wednesbury standard;

(3) the decision was unreasonable as the adjudicator failed to evaluate and make a finding of fact as to whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to Article 3(2) of United Nations Convention against Torture;

(4) the adjudicator failed to analyse and assess whether state protection exists in Bangladesh under the extended meaning and misdirected himself on the law erroneously stating what the extended meaning of state protection was;

(5) the decision was unreasonable as the Board took into account irrelevant or incorrect considerations, not based on fact or facts not reasonably inferred and failed to take into account facts and inferences favourable to the applicant;

(6) the Director and the adjudicator failed to call for psychological and psychiatric evaluations and reports;

(7) the adjudicator applied the incorrect standard of proof; and

(8) the procedure was unfair as the failures by the assigned duty lawyer resulted in a lack of or insufficient legal representation for the applicant.

The judge’s decision

23.  The Judge gave the following reasons in refusing leave to apply for judicial review in the form Call‑1 dated 24 May 2018:

“13. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence.  The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

14. There are eight grounds in this affirmation and all contain no particulars.  Grounds 5, 6, 7 and 8 contain no particulars.  As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars.  Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement.  These grounds have no merits.

15. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up‑to‑date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator very fairly considered relevant and recent material when he did not need to considering his finding the applicant was not a genuine claimant.  These grounds are not arguable.

16. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him.  He made an election to give evidence.  There was no record of any complaint or comment that he was confused, ill‑prepared or unhappy to proceed with the appeal.  At the oral hearing, by way of explanation, the applicant explained that he did not know he could complain to the adjudicator.

17. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 2 June 2017 which was before the oral appeal hearing date of 22 June 2017.

18. There is a complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable.  That was a finding of the adjudicator’s that he gave reasons for in his decision.  I do not intend to interfere with his findings.

19. I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

20. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

This appeal

24.  The applicant stated in his affirmation filed on 28 May 2018 that the grounds of appeal are as follows:

(1) the judge was wrong in law in holding that there was no state acquiescence or involvement; and

(2) the judge failed to provide detailed reason in support of her decision.

25.  The second ground is obviously untenable, in light of the detailed reasons provided by the judge as quoted above.  This leaves the first ground of appeal.

26.  As for the first ground, the judge did not make any holding on state acquiescence or involvement.  That was because state acquiescence or involvement was simply not a ground for judicial review mentioned in the applicant’s affirmation filed with the form 86.  There is no reason why the judge should make a holding on this at all.  Nor was any allegation or factual basis advanced for this concept in the hearing before the Board.  There was reference to the availability of state protection which would lower or negate the level of risk as claimed by the applicant in the decision of the Director[5] and the decision of the Board[6], but this is not the same as the concept of passive state acquiescence.  In any event, of the five incidents alleged by the applicant in support of his claim that he would be at risk if he should return to Bangladesh, the adjudicator declined to accept any of the incidents had happened and found that the applicant’s case is not genuine.  This primary finding makes it entirely academic to consider state acquiescence or involvement.  The first ground of appeal must fail.

27.  The document marked “Exhibit A” to the applicant’s affirmation of 28 May 2018 is substantially the same as his affirmation filed with the form 86.  As the Court of Appeal has repeatedly mentioned in a number of decisions (see for instance Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(2)), an appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.

28.  Insofar as the submissions in “Exhibit A” are a repetition of the arguments in the affirmation filed with the form 86, we see no basis at all to find fault with the judge’s reasoning.  As the Court of Appeal has mentioned on a number of occasions, assessment of evidence and COI materials, the risk of harm, state protection and viability of internal relocation are primarily matters for the Director and the Board.  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court will not usurp the function of the Board.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  See the cases cited in Nupur Mst v Director of Immigration at §14(1).

29.  The eight grounds mentioned above in the supporting affirmation filed with the form 86 are merely dressed up as grounds of procedural impropriety, unfairness and irrationality.  As noted by the judge, all except one of these grounds contained no particulars.  They are wholly lacking in substance.

30.  We agree with the judge for the reasons given in her judgment that the eight grounds advanced in the supporting affirmation do not raise reasonably arguable grounds for judicial review.  There is no need to elaborate further.

31.  We will deal with these two new matters raised in the document marked “Exhibit A”.

32.  Firstly, the applicant added a ninth ground in support of the application for judicial review.  He stated there was misdirection in the law in that the adjudicator misdirected himself on the law by taking into account that the applicant and/or the other applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.

33.  This additional ground was not raised before the judge.  In any event, it has no merit.  On a fair and proper reading of the decision of the Board, the adjudicator did not direct himself in the manner as submitted.  To the contrary, he made it very clear that his determination “is premised on such primary facts that are established and the COI that [he] [has] made reference to”.  He specifically stated that he is aware that “pressure that was brought upon an individual or ill treatment that took place in the past might escalate progressively” and “even if it were the case that there was no risk in the past, it does not always compel the conclusion that there is no risk at present or in the future”[7].

34.  Secondly, the applicant referred to three items of COI materials[8] complaining that the COI citations the adjudicator referred to were limited in number and insufficient and in some instances outdated.  He contended that had these three citations been considered by the adjudicator, they would have provided sufficient corroboration for the applicant’s version of events and legitimate fears and support for a finding of a consistent pattern of human rights abuses in Bangladesh and lack of state protection.

35.  The applicant did not make any application for admission of fresh evidence on appeal when he filed his notice of appeal or at any time when directions were given by the Registrar for the conduct of this appeal.  He has not provided any reason why such further evidence, if indeed material to his case, was not adduced before the judge.  We do not think he could have satisfied the test in Ladd v Marshall [1954] 1 WLR 1489 for the admission of fresh evidence on appeal.  See also the cases cited in Nupur Mst v Director of Immigration at §14(3).

36.  In any event, the adjudicator referred to a total of 13 items of COI information.  Save for two items, they were all dated subsequent to the three citations now sought to be relied on by the applicant, which were dated 2010 and 2011.  There is no substance to the complaint that the citation materials of the adjudicator were outdated or limited.

37.  For all the above reasons, we see no prospect of success in the intended application for judicial review.  There being no substance in any of the arguments raised in this appeal, we dismiss it accordingly.