RE MD SUMON

CACV 241/2018

[2018] HKCA 760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 241 OF 2018

(ON APPEAL FROM HCAL NO. 1132 of 2017)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 5 June 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 2 June 2016 and 27 March 2017 rejecting his non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 28 November 2017 dismissing the applicant’s appeal against the Director’s decisions.  

2.  On 10 August 2018, the Registrar of Civil Appeals directed that upon the hearing date of the appeal being fixed, the applicant shall lodge with the Court his skeleton argument not less than 28 days before the hearing of the appeal.  It was further ordered that if the applicant failed to lodge skeleton argument as directed, he shall be deemed to have waived his right to an oral hearing and elect to have his appeal disposed of on paper, in which case the hearing date shall be vacated and the Court shall proceed to consider the appeal on paper.  The directions were communicated to the applicant by letter dated 10 August 2018.    

3.  The requirement to lodge skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Due compliance with the requirement to lodge skeleton argument is important for the proper and effective functioning of the appeal process since non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  This Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement after being warned of the consequence of non-compliance, is treated as the abandonment of the right to an oral hearing. 

4.  The appeal was listed to be heard on 23 October 2018.  The applicant has failed to comply with the directions to lodge skeleton written argument. Consequently, the hearing date was vacated, and we have proceeded to deal with this appeal on paper based on the available materials before us.  This was communicated to the applicant by the Court’s letter dated 3 October 2018.  In the afternoon of 23 October 2018, the Court received by fax a one-page handwritten document together with a medical certificate issued by a doctor of the Department of Accident and Emergency of Queen Elizabeth Hospital certifying that the applicant was recommended for sick leave for 23 and 24 October 2018 due to lower back pain and a payment advice for accident and emergency charge. As the document was in a language other than English and Chinese, which are the official languages, and there is no translation, we are unable to ascertain its content.  As to the medical certificate, given that the hearing date had already been vacated, the indisposition of the applicant on 23 October 2018 is immaterial to the determination of this appeal. 

5.  The applicant is a Bangladesh national.  He entered Hong Kong illegally.  On 17 August 2014, he was arrested by the police.  On 19 August 2014 he raised a non-refoulement claim on the basis that if he were refouled to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) because he had promised to testify against them for killing his friend, Ripon. 

6.  The basis of the applicant’s claim had been set out in details in the Director’s first decision at [5] and [6] and in the Board’s decision at [13] to [26], and summarised by the Judge at [2] to [8] of the Form CALL-1 dated 5 June 2018, [2018] HKCFI 1179.  In brief, the applicant was a member of Jubo Dal, a youth wing of Bangladesh National Party, which is a rival party of AL.  The applicant had witnessed Ripon, a senior member of Jubo Dal, being stabbed to death by several AL members, and promised Ripon’s family to testify against the assailants.  He was assaulted on two occasion and had received threats of harm from AL members.  They continued to harass the applicant’s family after he fled to Hong Kong.   

7.  By a Notice of Decision dated 2 June 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3].  By a Notice of Further Decision dated 27 March 2017, the Director decided against the applicant on a BOR 2 risk[4] assessment.   

8.  The Board heard the applicant’s appeal against the Director’s decisions on 10 April 2017.  The applicant elected not to give evidence.  By its decision dated 28 November 2017, the Board dismissed the appeal.  The Board did not accept he had been assaulted and further considered that the applicant’s case, even if accepted, did not come within any of the applicable ground for affording non-refoulement protection.      

9.  The applicant filed a Form 86 together with a supporting affirmation on 21 December 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.  At the applicant’s request, an oral hearing was held on 23 May 2018.  The Judge set out the applicant’s grounds for applying for judicial review and gave his reasons for rejecting at [29], [30] and [38] to [42] of the Form CALL-1 as follows:

“29. In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issue of state acquiescence; failed to appreciate the corruption and incompetence of the administration in Bangladesh; failed to appreciate the misconduct of the Bangladesh police; failed to consider state instigation and the absence of state protection; failed to properly consider relevant country-of-origin information (“COI”); cherry-picked information; being unfair; rendered unreasonable decisions.

30. Regarding the Adjudicator, the Applicant accused the Adjudicator failed to make sufficient inquiry; failed to appreciate his limitation in adducing proof; failed to give him sufficient chance to arrange evidence.”

“38. The Applicant's complaints are mostly vague. He could not elaborate or be specific about them even though he was invited to do so in court.

39. The Applicant complained he had limitation in adducing proof. He mentioned he had been in custody. However, in court he confirmed he was freed on reconnaissance after 25 September 2014. He was only detained again in mid-December 2017 to mid-January 2018. This latter detention period was well after the conclusion of all the proceedings before the Director and the Adjudicator. It had no bearing on the Applicant's preparation for his claim or appeal.

40. I have studied the Director's decisions and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied they had duly considered the Applicant’s claim. They had basis to find there was no state instigation or state acquiescence. They had made balanced study of COI relating to Bangladesh and reasonably concluded that state protection and internal relocation were available to the Applicant. There was no evidence to show the Director and the Adjudicator were prejudiced or cherry-picked information. The respective findings, conclusions and decisions made by them were not Wednesbury unreasonable.

41. There is no substance in any of the complaints against the Director or the Adjudicator.

42. In my judgement, the Director and the Adjudicator made no errors of law and there was no procedural unfairness. They had each 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. The Director and the Adjudicator were entitled to render those findings, conclusions and decisions which were all reasonable. They had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

10.  The Judge concluded that the intended judicial review was not reasonably arguable and had no realistic prospect of success and refused to give leave to apply for judicial review. 

11.  In the Notice of Appeal filed on 19 June 2018, the applicant stated by way of grounds of appeal that: (1) he would face hardship if he returned to his home country; and (2) the Board relied on source of news that were not officially recognized or was simply hearsay, and cases that were outdated. 

12.  With respect to ground (1), the Board did not accept his assertion that he had been slapped and assaulted by members of AL on two occasions.  The Board further found that even if his assertion were to be accepted, he did not suffer severe harm or injuries, which could meet the minimum level of harm or show a present genuine and substantial risk of harm.  In the light of these findings, which we see no basis to interfere with, the applicant’s claim of hardship if refouled to Bangladesh cannot constitute a valid ground of appeal.

13.  As to the complaint of the Board’s reliance on country of origin information in ground (2), they are vague assertions.  We note that at the hearing of the leave application, despite being invited by the Judge, the applicant was unable to elaborate on or give specific details of his complaints.  We had reviewed the decision of the Board and do not discern any error in the Board’s discussions on the country of origin information.  The legal authorities that the Board referred to remain good law.    

14.  We are of the view that the appeal has no merits.  Accordingly, we dismiss the appeal.