RE MD MAMUN OR RASHID

CACV 456/2020

[2021] HKCA 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 456 OF 2020

(ON APPEAL FROM HCAL NO 522 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 12 August 2020, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1924.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 March 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 February 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The appeal was listed to be heard on 29 March 2021 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 1 March 2021 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 3 February 2021.

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 10 March 2008 and was arrested by the police on 1 June 2008.  He lodged a torture claim on 11 June 2008 which was later treated as a non-refoulement claim.

7.  The details of the applicant’s claim and his personal background were set out at paragraph 9 of the Director’s Decision, paragraphs 24 - 95 of the Board’s Decision and paragraphs 2 - 7 of the Deputy Judge’s Decision.

8.  Briefly stated, the applicant claimed that he would be harmed or killed by members of Awami League (“AL”) because he had been the president and student leader of a committee of Jatiotabadi Chatra Dal (“JCD”), which was a student wing of the rival Bangladesh Nationalist Party (“BNP”). The applicant’s claim is based on events happened from 2001 to 2007 when there were conflicts between members of AL and BNP.  The applicant, while never involved in the conflicts, was falsely accused and arrested by the police. Subsequently, upon hearing that two members of BNP got killed by the police, the applicant fled to Hong Kong for protection.

The Director’s Decision and the Board’s Decision

9.  In the Director’s Decision, the Director assessed the grounds on torture risk^[1], 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 31 January 2018, the Board conducted an oral hearing, during which the applicant answered questions from the Board with the assistance of an interpreter.  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.  The Board found numerous inconsistencies and problematic aspects in the applicant’s evidence.  The Board found him not to be a witness of truth.  Specifically, the Board concluded that he had made up his claims to have been politically active or to have political involvement in JCD or BNP.  It further found that he was never harmed or threatened by any AL people or supporters or falsely implicated in any criminal cases or being pursued by the police in Bangladesh prior to his departure, or that he will face any proscribed harms upon his return to Bangladesh.  The Board therefore held that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds (paragraphs 116 - 150 of the Board’s Decision).  The Board dismissed his appeal.

The Deputy Judge’s Decision

12.  The applicant filed a Form 86 on 29 March 2018 seeking leave to apply for judicial review against the Board’s Decision.  He did not advance any grounds of review in his Form 86 or his supporting affirmation filed on the same date but simply repeated his claim.  Further, the applicant did not request an oral hearing.  The Deputy Judge, in the absence of any grounds of review, held that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in [13] - [17] of the Deputy Judge’s Decision:

“13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.   In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 116 ‑ 150 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.   Furthermore, the fact that it has been established by the Director in his 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

13.  The applicant filed the Notice of Appeal on 11 September 2020 to appeal the Deputy Judge’s Decision.  His ground of appeal is as follows:

“I would like to say that there is an error in this decision because during my refoulement interview I gave my all supporting documents there for my case. But they disregard all and verbally I explaint to petition team too. Then high court never gave me the oral hearing to me to explain my problem and still I have problem for me in my country if I go at this moment. My life become unsecure because my enemies are very danger because they can do any harm for me I will explain in my oral hearing properly. I need protect my life too.” [sic]

Discussion

14.  The relevant legal principles governing the appeal in non-refoulement cases are set out at paragraph 14 of Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  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).

16.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Deputy Judge’s Decision with sufficient particulars and specifics.

17.  However, it is clear that the applicant did not identify any errors committed by the Deputy Judge.  The only complaint he had against the Deputy Judge was that he was not given an oral hearing.  As the court document revealed, the applicant had never requested one.  There are therefore no viable grounds of appeal to challenge the Deputy Judge’s Decision.

18.  In any event, 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

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