RE MONA

CACV 140/2018

[2018] HKCA 478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 140 OF 2018

(ON APPEAL FROM HCAL NO. 362 of 2017)

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J U D G M E N T

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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 Woodcock (“the Judge”) given on 23 April 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 22 June 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 18 December 2015 and 30 December 2016 rejecting his non-refoulement claim.

2.  The appeal was listed to be heard on 1 August 2018.  The applicant was directed to lodge 2 sets of skeleton argument not less than 28 days before the hearing and also warned that should he fail to do so, he would be deemed to have waived his right to have an oral hearing, in which case the appeal date would be vacated and the appeal would be dealt with on paper.  The direction and the warning were communicated to the applicant in the letter from the court dated 11 June 2018.  He was further reminded to comply with the direction by the notice of hearing dated 19 June 2018.

3.  The requirement for lodging of 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 arguments 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 default, is treated as the abandonment of the right to an oral hearing.  In the present case, as the applicant failed to lodge any skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

4.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 7 November 2013.  On 9 November 2013, he lodged a non-refoulement claim based on his fear that, if he returned to Bangladesh, he would be harmed or killed by supporters of the country’s ruling party, Awami League (“AL”) because he refused to leave an opposition party, Bangladesh Nationalist Party (“BNP”), and to join AL. 

5.  The applicant’s case is that he joined BNP as an ordinary member in 2011.  He was an active member and was given the responsibility of recruiting fellow villagers to join the party.  He relied on four incidents that took place before he decided to leave the country.  The first took place in June 2012.  The applicant and three other BNP members were distributing leaflets for the party when a group of about 13 AL supporters approached them. The applicant was grabbed hold of by one AL member and told not to promote the BNP at that location.  The applicant was punched in the face once, but did not require medical treatment.  The second incident was four days later when the applicant attended a BNP meeting conducted by his uncle, who was a prominent figure in the locality, to discuss election matters.  Some 30 AL people came and told them to stop the meeting.  When the demand was refused, the group attacked them.  The applicant was punched and hit with wooden sticks, and his back became swollen as a result.  No medical treatment was sought as the injury was minor.  No report was made to the police as the police would not handle complaints against the ruling party.

6.  The third incident was on about 9 July 2012 during a procession to promote the BNP participated by some 500 people.  They were attacked by about 2,000 AL people armed with choppers and wooden sticks.  A fight broke out in the course of which the applicant sustained multiple injuries, including wounds caused by choppers in in the shoulder, foot and knee and bruises all over the body.  Police came to the scene later and stopped the fight, but took no further action.  The applicant received stitches and medical treatment and was hospitalised for over ten days.  The fourth incident took place about one month after the applicant’s discharge from hospital.  Some AL people came to his home and threaten to injure him as badly as the last incident or even kill him, and told him to leave BNP and join AL to avoid further attacks.

7.  Fearing further attacks or being killed, the applicant decided to flee Bangladesh.  On 17 October 2012, he flew to Kunming, China on the strength of a Chinese visa, and travelled to Shenzhen where he stayed for almost a year before coming to Hong Kong in November 2013. 

8.  By a Notice of Decision dated 18 December 2015, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].  By letter dated 22 November 2016, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk[4]. Not having received a response from the applicant, the Director proceeded to consider the applicant’s claim on the ground of BOR 2 risk based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 30 December 2016, the Director decided against the applicant.

9.  The Board heard the applicant’s appeal against the Director’s decisions on 24 April 2017.  The applicant told the Board he had nothing to supplement except that it was not safe for him to go back.  By its decision dated 22 June 2017, the Board dismissed the appeal. 

10.  For the reasons set out in [22] of the decision, the Board found the applicant failed to make out a case that he needed non-refoulement protection.  In [26] and [27] of the decision, the Board went on to consider the country of origin (COI) information supportive of the applicant’s case that the police could not protect him and COI information that indicated the existence of alternative avenues to seek justice and protection, and concluded that state protection was available to the applicant on his return to Bangladesh.  The Board assessed there was no real risk of torture upon his return to Bangladesh as the pain and suffering did not come within the statutory definition of “torture”, there was no evidence of government officials being involved in the attacks and threatening behaviour, police had intervened to stop the fight in the third incident and the applicant was able to travel out freely out of the country.  The Board also noted that the dispute with AL was personal in nature and not within the grounds for persecution under the Convention.  On the facts of the case, the Board did not accept there was genuine or real risk of the applicant being subjected to ill-treatment under BOR 3.  The Board further found no case of violation of the right to life under BOR 2.          

11.  The applicant filed his Form 86 on 6 July 2017 seeking leave to apply for judicial review against the Board’s decision.  The applicant’s supporting affirmation filed on the same day advanced the following grounds in support of the relief claimed:

(1)   Failure to conduct a critical analysis of the relevant COI material, and to give any justification as to why the COI material supportive of the Director’s and Board’s conclusions should be preferred.  There was cherry-picking of the COI information and a failure to consider the claim in a holistic manner.

(2)   Failure to consider the extended concept of state acquiescence.

(3)   Failure to consider the applicant’s physical injuries and psychological harm in light of the facts stated in the non-refoulement claim form.  The decisions only took into account physical harm.

12.  At the applicant’s request, an oral hearing was held on 18 December 2017 to hear the leave application.  On 23 April 2018, the Judge dismissed the application and gave the following reasons in [12] to [17] of the CALL-1 Form:

“12. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and the adjudicator’s decisions to be without fault. They analysed the material, claims and evidence carefully. The applicant’s grounds and complaints are not made out. I find no substance in the grounds of this application; they are not substantiated.

13. It is a ground both the decision-makers failed to conduct a critical analysis of the COI material, analyse it objectively, they are accused of cherry picking COI information and failing to consider his claim in a holistic manner. However, in this ground there are no particulars provided. A reading of both decisions show these criticisms are justified in particular without any particulars to support them.

14. It is a ground of the application the Director/adjudicator failed to appreciate the presence of State acquiescence in the applicant’s case. Having considered the papers, it was not the applicant’s case and there was no need for either the adjudicator or the Director to consider if there was any active or passive acquiescence of any public officer or the State. The applicant made no police report and the evidence he gives of police bias is speculation and hearsay. There is no substance to this ground.

15. The last ground is a failure to consider the applicant’s physical injuries and psychological harm. However, it is clear from both decisions that both decision-makers did consider these factors and there is no merit in this ground.

16. I do not find any ground that shows there was an error of law by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

13.  In the Notice of Appeal dated 7 May 2018, the applicant stated that he could not go back to his country at this moment because it was not safe, and asked to be allowed to stay in Hong Kong.

14.  Having reviewed the decisions of the Director and the Board, we can discern no legal basis to disturb their conclusions that on the applicant’s own case, the level of risk of harm to the applicant on his return to Bangladesh was low, it was not made out he was in need of non-refoulement protection, and the necessary requirements for affording protection under the applicable grounds were not met. 

15.  We also see no ground for interfering with the Judge’s reasons for rejecting the grounds put forward for the intended judicial review.  Like the Judge, we do not see any error of law or procedure in the decisions of the Director and the Board or any unfairness in the process.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused. 

16.  Accordingly, we dismiss the appeal.