RE ALAM MOHAMMAD

CACV 169/2020

[2020] HKCA 944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 169 OF 2020

(ON APPEAL FROM HCAL NO 1516 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 8 June 2020, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1045.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 26 June 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 December 2017 (the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The appeal was listed to be heard on 3 November 2020 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 6 October 2020 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning were communicated to the applicant by the Notice of Hearing dated 8 September 2020.

4.  The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  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.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not to be permitted, and this court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

5.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.

Background

6.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 29 September 2015 and was arrested on the same date.  He lodged a non-refoulement claim in Hong Kong on 4 October 2015.

7.  The details of the applicant’s claim and his personal background were set out at paragraphs 5 - 6 of the Director’s Decision and paragraphs 25 - 35 of the Board’s Decision.

8.  Briefly stated, the applicant claimed that he would be harmed or killed by members of Awami League (“AL”) and his creditor named Sumon if he was returned to Bangladesh.  The applicant claimed to be a supporter of Bangladesh Nationalist Party (“BNP”).  In 2013, he borrowed a loan from Sumon who was also a BNP member for his car rental business.  However, the business failed and he was unable to repay the loan.  As such, since August 2014, Sumon had been demanding for repayment.  In December 2014, the applicant was assaulted by Sumon and four unknown males who threatened to kill him if he failed to repay the loan.  The applicant fled to Dhaka the next day and received medical treatment for the injuries suffered from the attack.  While the applicant was in Dhaka, he found out that Sumon left BNP and joined AL and that his cousin was threatened by Sumon to reveal his whereabouts.  Eventually, the applicant came to Hong Kong for protection.

The Director’s Decision and the Board’s Decision

9.  In the Director’s Decision, the Director assessed the torture risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the BOR 2 risk^[4]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

10.  The applicant appealed the Director’s Decision to the Board.  On 27 April 2018, the Board conducted an oral hearing, during which the applicant answered questions from the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection and dismissed his appeal against the Director’s Decision.

11.  Despite the lack of any documentary supporting evidence, the Board proceeded to consider the appeal on the assumption that there was indeed a loan, and that the applicant failed to make repayment.  It went on to find that this was only a private dispute without state involvement and that the alleged injuries suffered by the applicant were minor, far from the level of serious harms or torture (paragraphs 45 - 52 of the Board’s Decision) and that both state protection and internal relocation were available to the applicant (paragraphs 53 - 59 of the Board’s Decision).

The Deputy Judge’s Decision

12.  The applicant filed a Form 86 on 1 August 2018 seeking leave to apply for judicial review against the Board’s Decision.  The grounds of review were listed in his Form 86 and the supporting affirmation, which were summarized by the Deputy Judge at paragraph 11 of the Deputy Judge’s Decision:

“11. On 1 August 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) that the adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4) that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) that the hearing bundle was given to the Applicant only six days before his appeal hearing before the Board with the majority of the documents in English thereby given him insufficient time to prepare and to find an interpreter to assist him for his appeal which is procedurally unfair and unreasonable; and

(6)  that the Board had significantly relied on source of news not officially recognized or was hearsay or outdated which resulted in the Board making groundless speculations that it would be safe for him to return to his country of origin.”

13.  The Deputy Judge heard the applicant’s leave application on 27 November 2019.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in [12] - [17] of the Deputy Judge’s Decision:

“12.  These are however all very broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or in what way was its decision unreasonable or irrational in the public law sense, or what sources of news relied on by the Board were unofficially recognized or was hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

14.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

15.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

14.  The applicant filed the Notice of Appeal with supporting affirmation on 11 June 2020 to appeal the Deputy Judge’s Decision.  The applicant simply repeated his claim that his life would be in danger upon return.  Pursuant to the directions of Master Tsui dated 16 June 2020, the applicant lodged what he stated to be a supplemental Notice of Appeal on 30 June 2020.  In that, he said that the pandemic situation in Bangladesh was critical and he feared to return.  He attached to it his medical record from his home country.  He also advanced two further grounds in his document.  The first ground was that the Board erred by failing to maintain the high standard of fairness by not holding an oral hearing for the applicant. Under this ground, the applicant cited some general principles from ST v Director of Immigration [2014] 4 HKLRD 277[5] and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.  Under the second ground, the applicant simply cited the general principles of procedural fairness and Wednesbury unreasonableness without elaborating how these principles assisted his present appeal.  Further, the applicant included nine grounds of review in the supplemental notice of appeal.  They are repetitive and can be grouped under the categories of misdirection in the law, procedural impropriety / unfairness and irrationality.

15.  Despite the lengthy submissions stated in his supplemental Notice of Appeal, it is clear that they are only general concepts made against the Board without any particulars as to how they are related to his case.  The applicant also did not identify any errors in the Deputy Judge’s Decision.

Discussion

16.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

17.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

18.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  Third, 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

20.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

21.  As mentioned earlier, the applicant failed to identify any errors in the Deputy Judge’s Decision.  On this basis alone, we will dismiss this appeal.

22.  In any event, the grounds in the applicant’s supplemental Notice of Appeal have no merits at all.  Except those he advanced but failed before the Deputy Judge (see paragraph 13 above), the rest were not put forward before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

23.  As to those grounds he advanced before the Deputy Judge, he merely regurgitated the same arguments before this Court without identifying any errors in the Deputy Judge’s reasons in rejecting them.  These are not viable grounds of appeal.

24.  Further, we have reviewed the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

25.  For the reasons given above, the applicant’s appeal has no merits.  Accordingly, we dismiss the appeal.