SIDDIK ABU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 253/2019

[2019] HKCA 1106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 253 OF 2019

(ON APPEAL FROM HCAL NO 526 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 31 May 2019^[1]. By that decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim. The hearing date of this appeal has been vacated and we are dealing with this appeal on paper for the reasons which appear below.

2.  The applicant is a national of Bangladesh who entered Hong Kong illegally on 30 July 2014 and was arrested by the police on 13 August 2014.  He raised a non-refoulement claim on 16 August 2014.  He claimed that if he were to return to Bangladesh, he would be harmed or killed by his eldest brother over a land dispute and/or by the supporters of the rival political party Awami League (“AL”).

The Director’s decision

3.  By a Notice of Decision dated 6 April 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

4.  The Director decided that the low intensity and frequency of ill-treatment from the applicant’s brother and/or the AL people in the past is indicative of a small future risk of harm upon his return to Bangladesh.  The problem is private in nature and not caused by any political reason as alleged.  He also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. 

5.  By a notice of further decision dated 12 May 2017, the Director rejected the applicant’s non-refoulement claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk^[5].  The Director considered that the applicant failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated upon his return to Bangladesh.

The Board’s decision

6.  The applicant appeared at the hearing of the appeal against the Director’s decisions on 2 February 2018.  The Board found that there is no reliable evidence to support that the applicant had any well-founded fear of any risk under any of the applicable grounds.  Therefore, the appeal was rejected by the Board on 2 March 2018.  

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 29 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  But he did not state any grounds for judicial review in his Form 86 or his supporting affirmation. 

The judge’s decision

8.  At the hearing before the judge, the applicant did not put forward any ground and only asked the court to consider his case properly^[6]. The judge considered that there is no legal error or procedural unfairness in the decisions of the Director and the Board.  He also found that they have not failed on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim^[7]. As the applicant has no prospect of success in the intended judicial review, the leave application was refused on 31 May 2019 accordingly^[8].

9.  The applicant filed a Notice of Appeal against the decision of the judge on 12 June 2019. 

The grounds of appeal

10.  The grounds of appeal in the notice of appeal may be summarized as follows:

(1)  The Director failed to appreciate or give proper weight to the presence of state acquiescence in the applicant’s case.  The Director, the adjudicator and the Court have failed to take such argument into account and that the Director has failed to give sufficient weight to such argument before reaching the decision.

(2)  The adjudicator failed to make sufficient enquiry before finalizing the determination.  The adjudicator stated that the applicant has failed to advice (sic) any credible evidence to prove material elements of his claim.

(3)  The applicant is a torture claimant who has no or limited options at his disposal to bring his evidence before the tribunal.  The adjudicator failed to give sufficient chance for him to arrange relevant evidence for his non-refoulement claim as well as his appeal.

(4)  The Director kept including meaning which suited his pre-conceived conclusion while referring to relevant Country of Origin Information (“COI”) in his decision.  The unfair attitude shown by the Director is enough to render his decision void.

11.  As mentioned earlier, in his application before the judge for leave to apply for judicial review, the applicant had not put forward any grounds to support his application.

Non-compliance of unless order

12.  The appeal was scheduled to be heard on 15 October 2019.  Directions were given by the Registrar of Civil Appeals on 18 July 2019 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided 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 his appeal and elect to have his appeal disposed of on paper.

13.   The applicant failed to lodge skeleton argument by the prescribed time (ie on or before 17 September 2019).  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  The court informed the applicant by letter dated 24 September 2019 that the hearing date of 15 October 2019 has been vacated and that his appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

14.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  The Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

17.  The grounds of appeal relied on by the applicant were not raised before the judge in the leave application below.  An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below^[9]. The Court of Appeal will not entertain the applicant’s grounds which have not been canvassed at the court below and for which leave has not been sought within time by the applicant.

18.  As for the applicant’s complaint against the judge for failing to take into account his argument on state acquiescence, this complaint is without basis.  In fact, the applicant did not put forward any or any such argument in his original leave application.  At the hearing before the judge, he simply stated that he had nothing to say and only submitted that the Board did not consider his case properly so he hoped the court can consider his case properly^[10]. 

19.  In any event, the judge had considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny.   His reasons for refusing to grant leave are explained in paragraphs 13 to 15 of his decision.  The judge’s determination is well justified.  The applicant failed to demonstrate that the judge had made any errors of law or had failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

20.  There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  We therefore dismiss this appeal.