RE MAHIUDDIN MOHAMMAD

CACV 106/2019

[2019] HKCA 1011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 106 OF 2019

(ON APPEAL FROM HCAL 1127/2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 21 February 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 10 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 17 June 2016 and 27 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested by the police on 15 July 2014.  He lodged a non-refoulement claim on 19 July 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [11] of the CALL-1 Form.

4.  By a Notice of Decision dated 17 June 2016 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 27 July 2017, the director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 4 October 2017, the Board dismissed the appeal on 10 November 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [36] of the Board’s Decision, the Board held that there is insufficient evidence to support the fear of serious harm allegedly faced by the applicant.  The Board was also satisfied at [52] – [53], [60] and [72] that there is no evidence to show that state protection would not be available for the applicant.  At [76] the Board was satisfied that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 21 December 2017 which contained the grounds for judicial review as summarised below:

(1) the Director failed to appreciate or give proper importance to state acquiescence;

(2) the Director failed to give appropriate weight to relevant country of origin information (COI);

(3) the Director’s Decisions were unfair and unreasonable;

(4) the Board failed to make sufficient inquiry;

(5) the Board failed to assess his claim properly and failed to have regard to the fact that he had no or limited options at his disposal to adduce evidence since he was in custody at the immigration detention centre; and

(6) the Board failed to give him sufficient chance to arrange relevant evidence.

9.  In his affirmation in support of the leave application dated 21 December 2017, the applicant exhibited the relevant documents.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [30] to [38] of the CALL-1 Form:

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

31. 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’. Nevertheless, it is said in Re Islam Rafiqul: –

‘The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

32. The Applicant complained the Adjudicator failed to make sufficient inquiry and failed to assess his claim properly.

33. As evident in the Adjudicator’s report, the Adjudicator studied the Applicant's case thoroughly and made comprehensive inquiry. Her various findings are not Wednesbury unreasonable.

34. The Applicant said the Adjudicator failed to have regard that he had no or limited options at his disposal to adduce evidence since he was in custody at the immigration detention centre. However, there was no evidence the Applicant was remanded again by the Immigration Department after he was released on recognizance on 29 August 2014. There was no evidence the Applicant was deprived of any opportunity to prove his claim as much as he could.

35. The Applicant also accused the Adjudicator failed to give him sufficient chance to arrange relevant evidence. In this regard, the Applicant failed to give particulars. There was no evidence he had asked adjournment for cause in the Board hearing.

36. In court, the Applicant said he could submit fresh evidence if given more time. He was talking about an alleged fabrication against him in Bangladesh that came up only about a month before the court hearing. It certainly had nothing to do with the appeal hearing before the Adjudicator in October 2017.

37. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator 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 was acquainted with the facts. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

38. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 5 March 2019 the applicant advanced the following grounds of appeal:

“The Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

12.  The applicant failed to comply with the direction made by this court on 21 March 2019 requiring him to lodge skeleton submissions not less than 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 23 July 2019 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

15.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any specific error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.