RE KAMOL HOSSAIN MOHAMMAD

CACV 418/2023, [2024] HKCA 341

On Appeal From [2023] HKCFI 2957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 418 OF 2023

(ON APPEAL FROM HCAL 1015 OF 2019)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 1 December 2023 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 (“the Board”) dated 28 March 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 July 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh. He entered Hong Kong as a visitor on 18 January 2016. He however overstayed and surrendered to the Immigration Department on 2 February 2016. Thereafter, he lodged a non-refoulement claim on 21 September 2016 by way of written representation.

3.  The applicant’s claim was based on his fear of being harmed or killed by members of the Awami League. The details of the applicant’s claim have been summarised by the Judge at [3] to [6] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 11 July 2018 i.e. the Director’s Decision, the Director rejected the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 24 January 2019 and at which the applicant attended in person, assisted by an interpreter in the Bengali and English languages. On the totality of the evidence, the Board did not accept the applicant faced a real chance of harm of any type in Bangladesh in the reasonably foreseeable future for any of the reasons he had claimed, should he be refouled. The applicant’s appeal was dismissed by the Board’s decision dated 28 March 2019 i.e. the Board’s Decision, which covered all applicable grounds for a non-refoulement claim.

The Judge’s decision

6.  The applicant filed a Form 86 on 15 April 2019 seeking to judicially review the Board’s Decision, setting out the following grounds for review, which have been summarised by the Judge at [14] of the CALL-1 Form:

“(1) The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirement.

(2) The adjudicator acted in a procedurally unfair manner in dealing with his appeal.

(3) The Board’s Decision was unreasonable or irrational in the public law sense, or is a result of procedural errors or unfairness.

(4) The Board failed to meet the greater care and duty owed to a self-represented claimant.”

7.  In his supporting affirmation filed on the same date, the applicant inter alia reiterated the dangers which he would face should he be refouled to Bangladesh, and essentially contended that his limited fluency in English and the lack of legal representation before the Board had rendered the proceedings procedurally unfair.

8.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused leave to the applicant to apply for judicial review. The Judge gave the following reasons in refusing leave at [15] to [21] of the CALL-1 Form:

“15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

18. Those grounds in paragraph 14, supra are general assertions or propositions of the law. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

19. The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Grounds for appeal

9.  In the Notice of Appeal filed on 15 December 2023, the applicant set out his grounds of appeal, which may be summarised as follows:

(1)  The Director, the Board and the Judge failed to take “such argument” (without particulars or elaboration as to what such argument may be) into account.

(2)  The Director failed to “appreciate or give the proper importance… to the presence of State Acquiescence in the Applicant’s case” which led to an unfair outcome.

(3)  The Board failed to “give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal” and failed to “make sufficient enquiring [sic] before finalising the determination”.

10.  In breach of the directions made by the Registrar of Civil Appeals on 23 January 2024, the applicant failed to lodge skeleton argument within the time specified. Hence, the hearing date of 9 April 2024 was vacated and the appeal was dealt with on paper on the basis of the materials already filed with the court.

11.  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.

Discussion

12.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  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’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.  As can be seen from the above, the applicant has failed in his Notice of Appeal to identify, with particularity, any error on the part of the Judge and thus failed to raise any viable ground of appeal. It is necessary for the applicant to identify and substantiate some error on the part of the Judge that would justify this court in intervening. The applicant has wholly failed to do so. On this ground alone, the appeal must fail.

15.  The applicant’s grounds of appeal are either complaints made against the Director (it being established principle that a decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by a non-refoulement claimant: see Re Moshsin Ali [2018] HKCA 549), or broad-brush criticisms of the Board and the Judge without particularity as to the nature and extent of the alleged errors committed by them or how such alleged errors are said to have unfairly impacted on the processing and determination of his claim.

16.  Regarding the applicant’s complaint of the alleged unfairness caused by his lack of legal representation at the Board level, we note that in this case, the applicant already had the benefit of legal assistance in presenting his case to the Director by the submission of his non-refoulement claim form. As this court has held, it does not follow from the application of high standard of fairness that a non-refoulement protection claimant is absolutely entitled to free legal representation at all stages of the screening process or the legal proceedings ensuing therefrom: See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

17.  Further, the applicant’s complaint of prejudice by reason of his lack of proficiency in English is of little merit. We note that he was able to, either by himself or with assistance from others, lodge with the court documents written in English. In this regard, we also note the assistance he had received from an interpreter in the proceedings at both the Director and Board levels.

18.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established: See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. The Judge considered the decisions of both the Director and the Board and found no basis for intervening. In our view, he was clearly correct to do so.

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