RE SABUZ MOLLAH

CACV 60/2018

[2018] HKCA 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 60 OF 2018

(ON APPEAL FROM HCAL 312/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock of 7 March 2018 refusing to grant him leave to apply for judicial review.

2.  After lodging the present appeal on 12 March 2018, the applicant wrote to the court on 26 April 2018 indicating that he had just applied for legal aid and would fix the hearing date after the making of the decision of his application.  In absence of any explanation for the delay in making the legal aid application, Lam VP lifted the legal aid stay on 10 May 2018 and listed the appeal for hearing on 18 July 2018.  The applicant was also directed to lodge his skeleton submission by 20 June 2018, failing which the hearing date would be vacated and the appeal would be dealt with on paper.

3.  On 20 June 2018, the applicant wrote to the court applying for an extension of time to lodge his skeleton submission, on the ground that his legal aid application was still pending.  On 21 June 2018, Kwan JA rejected the application and vacated the hearing on 18 July 2018.  It was further directed that this appeal should be proceeded on paper based on the materials already lodged.

4.  In line with the spirit of civil justice reform, this Court does not permit unfocused presentation of material at an oral hearing.  In recent time, we have taken a firm stance against the non-compliance with the requirement to lodge skeleton submissions.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  It is often buttressed by specific directions given by the Registrar of Civil Appeals or the judge presided in an appeal.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  Non-compliance with such requirement impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of oral hearing.  Non-compliance with such requirement, notwithstanding an unless order, is treated by the Court as the abandonment of the right to an oral hearing. See: Re Manjit Kaur [2018] HKCA 247, Re Miha Md Limon [2018] HKCA 278, Re Ali Arshad [2018] HKCA 304, and Re SK Sarf Araj [2018] HKCA 307.

5.  We have duly considered the materials already filed by the applicant.  We shall now give our judgment in this appeal.

Background

6.  The applicant is a Bangladeshi national.  He first entered Hong Kong by using a forged passport on 18 December 2004.  He was arrested for, and later convicted of, the offence of taking up an unlawful employment in Hong Kong.  He was sentenced to two-month imprisonment and was repatriated to Bangladesh on 19 October 2005.

7.  The applicant re-entered Hong Kong under his current identity on 17 December 2005.  He was allowed to remain as visitor until 31 December 2005.  He overstayed illegally.  He was arrested by the police on 5 April 2006.  He lodged his torture claim on 8 April 2006.  Whilst on recognizance, he was arrested twice for working illegally in Hong Kong, and was convicted on each occasion. 

8.  His torture claim was rejected on 12 September 2012. 

9.  The applicant lodged a non-refoulement claim on 27 May 2015.  Since his torture claim had already been rejected, the applicant’s non-refoulement claim was only based on the applicable grounds except the torture risk[1].

10.  The basis of the applicant’s non-refoulement claim was that, if he were to be returned to Bangladesh, he would be harmed, or even killed, by a man named Liton, who was a member of the Bangladesh National Party (“BNP”), or other members of BNP.  It was the applicant’s case that he was a supporter of the political rivalry Awami League and that he injured Liton during a political rally in 2004.  The applicant claimed that Liton and/or other members of BNP would retaliate against him if he returned to Bangladesh.  He also feared that he would be arrested, and tortured by the Bangladeshi police, because he was framed for murdering his friend’s father. 

11.  By a Notice of Decision dated 22 January 2016, the Director of Immigration rejected his claim.  The director considered that there was no substantial ground for believing that the applicant would not get a fair trial for the murder charge against him.  The ill-treatment inflicted by the BNP people did not attain minimum level of severity.  The low intensity and frequency of the past ill-treatments indicated low risk of harm upon his return to Bangladesh.  The director also considered that the availability of state protection and the viability of internal relocation would address the perceived risk of harm.  The director’s decision covered BOR 3 risk[2] and persecution risk[3].

12.  By a Notice of Further Decision dated 10 February 2017, the director also assessed the applicant’s BOR 2 risk[4] and decided against him.

13.  The applicant petitioned to an adjudicator of the Non-refoulement Claims Petition Office against the director’s decisions.  After a hearing held on 20 March 2017, the adjudicator dismissed the applicant’s petition on 15 June 2017.  Although strictly speaking the director’s decisions did not cover the torture risk, the adjudicator also assessed the applicant’s torture risk in his decision.  The adjudicator took the view that, although the Bangladeshi police might be regarded as “state agents”, there was no evidence suggesting that the applicant had suffered any “severe injury and serious harm” in the hands of the Bangladeshi police.  The injury suffered by the applicant during the rally did not attain the minimum level of severity.  After considering the relevant country of origins information (“COI”), the adjudicator also shared the director’s findings that state protection was reasonably available and internal relocation was a viable option for the applicant.  In addition, the adjudicator found that the applicant was not credible as he failed to lodge the non-refoulement immediately after his arrival in Hong Kong. 

The deputy judge’s decision

14.  The applicant filed the form 86 on 21 June 2017.  The judge held an oral hearing on 20 November 2017 and gave the reasons in refusing leave to apply for judicial review at paragraphs 25 to 42 of the Judgment dated 7 March 2018.  As the judgment has been published as [2018] HKCFI 401, we shall not recite the same here.  The judge concluded:

“ 42. I do not find any ground that shows there was an error of law by the adjudicator. Nor do I see any evidence of procedural unfairness or a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. None of the grounds were arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676. There is no realistic prospect of success, therefore I refuse leave for judicial review.”

Grounds of appeal

15.  In his Notice of Appeal filed on 12 March 2018, the applicant referred to his affirmation.  In a supporting affirmation of 12 March 2018, the applicant advanced the following grounds of appeal:

(a)   The deputy judge was wrong in law in holding that there was no state acquiescence or involvement; and

(b)   The deputy judge failed to provide detailed reason in support of her decision.

Discussion

16.  The written judgment of 7 March 2018 speaks for itself.   It is patently wrong for the applicant to suggest that the judge failed to provide detailed reason in support of her decision.

17.  It was the finding of the adjudicator that the attacks by the BNP people were not instigated or authorized by the Bangladeshi government.  The adjudicator also found that there was no evidence that the applicant had suffered, or would suffer, from “severe injury and serious harm” in the hands of the Bangladeshi police.  The applicant failed to provide any basis to challenge these findings of facts.  The adjudicator was entitled to make such findings based on the available materials.  We do not see any legal error in the findings. 

18.  The court will not usurp the adjudicator’s role as primary decision maker.  Judicial review is not an avenue for revisiting the assessment of facts and evidence by the adjudicator in the hope that the court may consider the matter afresh in the absence of any legal error, see: Re Lakhwinder Singh [2018] HKCA 246.

19.  Nor can we find any flaws in the judge’s analysis in relation to the extended concept of state acquiescence as set out in paragraph 35 of her judgment.  As she said:

“ 35. The adjudicator is accused of failing to consider the meaning of extended State acquiescence and assessing whether there exists in Bangladesh a consistent pattern of flagrant human rights violations. However, the applicant did not rely on the extended concept of State acquiescence. The applicant made no report to the police or any other authority in Bangladesh. This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons. There are no merits in these grounds.”

20.  The applicant’s fear of being arrested by the police for legitimate criminal investigation or prosecution cannot form the basis for a finding of state acquiescence.  We do not find material to support the bald assertion by the applicant that the criminal prosecution would be based on a false and fabricated charge. 

21.  We agree with the judge’s conclusion that there was no merit in this challenge.

22.  Having reviewed the materials before us, we do not find any basis to disturb the conclusion of the adjudicator that there is no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatments which meets the high threshold required by the law, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174.

23.  In the circumstances, the judge’s conclusion on the lack of merit in the applicant’s case is correct.  We do not see any error of law or procedure in the proceedings below.  Nor is there any reasonably arguable basis to challenge the fairness of the process.   Determination of the merits of a non-refoulement claim is essentially a matter for the director and for the adjudicator, not for the court.  There is no reasonably arguable basis to challenge the decision of the adjudicator.  We agree with the deputy judge that leave to apply for judicial review should be refused.

24.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.