FARID v. DIRECTOR OF IMMIGRATION

CACV 247/2019

[2019] HKCA 1267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 247 OF 2019

(ON APPEAL FROM HCAL NO 35 OF 2018)

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J U D G M E N T

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

Introduction

1.1. This is an appeal by Mr. Farid (“the appellant”) from an order of DHCJ Bruno Chan (“the Judge”) given on 31 May 2019 dismissing his application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in [2019] HKCFI 1430 (“the Judge’s Decision”).    

1.2.  In 2008, the appellant had made a torture claim (“the Previous claim”) which had been rejected by the Director in a decision dated 12 August 2011 (“the Director’s 1^st Decision”).  The appellant’s appeal from the Director’s 1^st Decision was dismissed by the Torture Claims Appeal Board (“TCAB”) on 16 September 2011.  The appellant did not apply to judicially review either decision and returned to Bangladesh in 2011.

1.3.  However the appellant came to Hong Kong again in 2013 and made another claim (“the Subsequent claim”) for non-refoulement.  On 26 October 2017, the Director rejected his claim (“the Director’s 2^nd Decision”).  The appellant then applied to the Judge for judicial review of the Director’s 2^nd Decision. 

Background

2.1. The appellant is a national of Bangladesh now aged 42.  He claimed he had been a member of the Awami League (“AL”) since 1994 and used to campaign for the AL.  He alleged that HD, RT, PK and others who were members of the Bangladesh Nationalist Party (“BNP”), wanted him to join them but he refused.  He alleged this led to his being arrested and then released by the police in 1996, being arrested again and beaten by the police in 2004, and being assaulted by the 3 BNP members in 2005.     

2.2.  The appellant arrived in Hong Kong on 28 July 2006.  He overstayed for nearly one and a half years.  He then had an accident and required treatment at Tuen Mun Hospital.  He was arrested on 16 January 2008, whereupon he raised the previous claim.  As mentioned above, it was rejected in the Director’s 1^st Decision, and by the TCAB.      

2.3. However, in around 2013, the appellant entered Hong Kong again and made the Subsequent claim which was contained in, or supported by, various documents dated 3 December 2013, 19 September 2017, 3 October 2017 and 17 October 2017 with annexures.  He alleged he had moved around staying in different parts of the country in 2011 and 2012, and in December 2012 he was kidnapped by BNP members led by RT and PK.  However, he said he was left on his own by the kidnappers and his neighbours rescued him. (A newspaper article he submitted in support reported the kidnapping but stated that it took place the following year).  He said his brother filed a report with the police but he claimed the police in Bangladesh sided with the BNP.  

2.4. Section 37ZO(2) of the Immigration Ordinance, Cap.115 provides that a person who has previously made a torture claim must not subsequently make another torture claim, unless he provides sufficient evidence in writing to satisfy the Director that (a) there has been a significant change of circumstances since the previous claim was finally determined, and (b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.   

The Director’s 2^nd Decision

3.  The Director’s representative had an interview with the appellant and considered the documents relating to the subsequent claim.  The officer concluded that s.37ZO(2) was not satisfied.  The mere provision of receipts showing that the appellant had stayed in different places in the country was not proof that he had been threatened, and if the kidnapping did take place, there would have been ample opportunity for the perpetrators to seriously harm or kill him which they did not take.  Further, the newspaper report quoted the police as saying that efforts were made for effecting a rescue, and there was no evidence that the police sided with the BNP.    

Application for leave to start judicial review

4.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the Director’s 2^nd Decision. The appellant set out his grounds in his Form 86 which was summarized by the Judge in [11] of the Judge’s Decision. 

The Judge’s Decision

5.  The appellant appeared at the hearing before the Judge.  As mentioned earlier, the Judge refused leave for reasons set out in [12] - [17] of the Judge’s Decision.

“12. As held by the Court of Appeal in Ram Chander v Director of Immigration [2018] HKCA 585, while the above statutory provision is applicable to torture claims, by virtue of the administrative provisions governing USM, under its current regime the same constraints are applicable for other non-refoulement claims, in particular when the Director’s guidance note for determination of non-refoulement claims contains the same provisions, and whilst it is open to the Director to adopt measures like the said statutory or administrative constraints to prevent abuse of the system by a claimant who makes repeated claims without merit, the Court would ensure that the application of such constraints in a particular case would not prevent a genuine non-refoulement claim with realistic prospect of success from being properly considered by the Director: per Lam VP in paragraphs 9 – 11 of the judgment.

13. It is however not the situation with the applicant in the present case for the following reasons.

14. Firstly, the grounds put forward by him are simply just 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 Director had erred in the decision, or in what way did the Director fail to take into account 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. Nor do I find any basis or relevancy in any of them to his application.

15. More importantly, having read the materials presented by the applicant including all the additional documents to support his subsequent claim, including his presentation at the oral hearing of his application now before me in which he merely repeated that his life would still be in danger in Bangladesh, I agree with the Director that the applicant had failed to provide substantial and cogent information to show any significant change of circumstances since his previous claim, and that his subsequent claims are substantially based on the same alleged facts of threats and attacks by the same BNP supporters for his refusal to leave AL to join BNP which had all been duly considered by the Director and the Board in their previous decisions, and again properly assessed by the Director including the additional information provided by the applicant in his later decision of 26 October 2017.

16. As such the Director was in my judgment correct in coming to his conclusion that the materials presented by the applicant when taken together with those previously submitted by him as well as the findings by the Director in particular as to the availability of state protection and reasonable internal relocation within Bangladesh, that such change if any would not give his subsequent claim a realistic prospect of success.

17. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal

6.  By a Notice of Appeal filed on 6 June 2019, the appellant appealed the Judge’s order to this court.  He stated the following in his supporting affirmation filed on the same date:

“(1) The [judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2)  The [judge] failed to provide detailed reason in support of [his] decision.”

Skeleton Submissions

7.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

8.  The appellant failed to make out his first ground of appeal.  The Judge had not made his decision on the basis of state acquiescence at all.  

9.  The second ground of appeal also fails as the Judge had discussed and analyzed the appellant’s grounds of judicial review in detail ([14]-[16]).  It is notable that in the Previous claim, the TCAB did not accept that those 3 persons would hold a permanent grudge against the appellant (who was only a member of the AL), simply because he had refused to join the BNP [18], and in the Subsequent claim, he alleges the same persons were involved for the same reason.  The judge was also entitled to take into account the availability of state protection and reasonable internal relocation.

10.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the Director’s Decision.

Order

11.  For the reasons set out above, this appeal must be dismissed.