RE MOHAMMAD AMIN UDDIN MONDOL

CACV 323/2018

[2018] HKCA 788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 323 OF 2018

(ON APPEAL FROM HCAL 938/2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 July 2018 refusing leave 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 dated 14 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 23 May 2016 and 3 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 17 July 2014 illegally and was arrested by the police on the same day.  After his arrest, he lodged a non-refoulement claim on 20 July 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 23 May 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 3 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 May 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 14 November 2017 (“Board’s Decision”) because the applicant’s case lacked credibility ([55] of the Board’s Decision).

The deputy judge’s decision

7.  The applicant filed a Form 86 on 23 November 2017 which contained no ground for seeking relief. 

8.  In the affirmation in support of the leave application dated 23 November 2017, the applicant advanced various grounds for judicial review which are summarised below:

(1)   the Board failed to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(2)   the Board cherry-picked COI information and relied on outdated COI;

(3)   the Board failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(4)   the Board failed to analyse Bangladeshi state protection.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(5)   the Board took into account incorrect facts and failed to give weight to facts favorable to the applicant;

(6)   the Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(7)   the Board applied incorrect standard of proof;

(8)   the duty lawyer failed at the first instance to give sufficient legal representation.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 13 to 18 of the CALL-1 Form:

“13. These are all very broad and vague assertions of the applicant containing several pages of 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 in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14. Furthermore, given the fact that the applicant’s claim was rejected essentially on his credibility, any attempt to challenge the Board’s decision on its reliance of COI in the assessment of situations in Bangladesh seems to me futile and pointless, as it is well established principles that the evaluation of evidence is essentially a matter of the Director and the Board who are entitled to make such evaluation based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, and with the clear findings against him by the adjudicator who had had the benefit of seeing and hearing him in evidence and in answering her questions at the oral hearing on the core of his claim that he was a member of Chhatra Shibir and was thus specifically targeted by the AL supporters which was rejected by the adjudicator as his fabrications to advance his claim for non-refoulement protection, I fail to see how any of these grounds of the applicant can be reasonably arguable.

15. 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 insufficient time to prepare for his appeal.

16. 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 and were made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to properly prepare for his appeal at his oral hearing before the Board. Accordingly I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

17. In the premises and having proceeded to consider 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.

18. 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

10.  In the Notice of Appeal dated 19 July 2018 the applicant did not provide any grounds of appeal referring instead to his affirmation filed the same day.  In his affirmation, the applicant said that the judge was wrong in law in holding that there was no state acquiescence or involvement.  He also complained that the judge also failed to provide detailed reasons in support of his decision. 

11.  In Exhibit A annexed to the affirmation dated 19 July 2018, he reiterated the 8 grounds of judicial review found in his affirmation dated 23 November 2017.  He added a new ground based on misdirection of law which states that the Board misdirected itself by “taking into account that the Applicant and/or the other Applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.”

12.  The applicant failed to comply with the direction made by this court on 14 August 2018 requiring him to lodge skeleton submissions by 12 September 2018, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  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.

14.  The hearing date on 10 October 2018 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

15.  We would not allow the applicant to rely on the new ground based on misdirection of law.  This ground was never canvassed at the Court of First Instance and is now well outside the time limit for judicial review (Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).

16.  The applicant claimed that the judge erred in holding that there was no state acquiescence.  The applicant failed to provide any particular for those grounds.  This ground lacks substance and is bound to fail.

17.  The applicant also alleged that the judge failed to provide detailed reasons for his decision.  As is apparent from the parts of the judgment below set out in paragraph 9 above, this allegation is without merit.  The judge clearly explained the reasons for his decision in those paragraphs of the CALL-1 Form.    

18.  In Exhibit A, the applicant simply repeated the 8 grounds of judicial review before the judge.  These grounds are not directed at the errors of the judge but at the alleged errors of the Board.  The judge had already dismissed those grounds after careful consideration, and no basis is made out for suggesting that the judge had erred in doing so.  These are not, therefore, valid grounds of appeal at all. 

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