RE UDDIN JASHIM

CACV 457/2018

[2019] HKCA 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 457 OF 2018

(ON APPEAL FROM HCAL NO. 1113 of 2017)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 7 September 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 13 December 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 1 September 2016 and 20 July 2017 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 17 January 2019.  The applicant was directed to lodge a skeleton argument by 20 December 2018 and also 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 in the Notice of Hearing dated 4 December 2018.

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by 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.  In the present case, as the applicant failed to lodge a 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 first came to Hong Kong illegally in 2007 and was arrested by the police on 26 February 2008.  At the time, he held a Bangladesh passport in the name of Jashim Uddin with the date of birth being 15 February 1978.  On 20 March 2008, he made a torture claim, which he withdrew on 13 January 2010.  He was voluntarily repatriated on 1 February 2010.  In 2013, the applicant came to Hong Kong again illegally, and was arrested by the police on 26 November 2013.  He had a passport in the name of Jashim Uddin but with a different date of birth, namely, 15 February 1983, which the applicant claims is his correct date of birth.  On 30 November 2013, he made the present non-refoulement protection claim.    

5.  The applicant’s claim is based on his fear of being harmed or killed by his paternal uncle due to a land dispute, and by supporters of the Bangladesh Nationalist Party (“BNP”) because he was a supporter of the Awami League (“AL”) and had refused his uncle’s request to join the BNP.  The Judge summarised his case in [6] and [7] of the Form CALL-1 dated 7 September 2018, [2018] HKCFI 1832, as follows:

“6.  The Applicant is a Bangladeshi national.  He was born in Uttardanpur, Bangladesh. He received five years of primary education and worked as a truck driver between 2001 and 2003 and later, he worked on the family farm.  He is married with one daughter aged six.  He and his immediate family supported the Awami League (“AL”) but he was not an active member.  He had joined AL in 2001.  Shortly after he joined, his uncle sought to persuade him to join the BNP instead. When the Applicant refused, his uncle beat him with his fists and a wooden stick resulting in a cut to his leg, which was taken care of by a local doctor.  Approximately six days later, the same uncle threatened the life of the Applicant.  For a short period of time the Applicant lived elsewhere but eventually returned to his home village and worked as a driver and then as a farm worker upon family land from 2002 to 2007 without further incident.  The Applicant left Bangladesh to come to Hong Kong in May 2007 and entered illegally from China.

7.  In 2010, the Applicant was informed that his uncle was no longer threatening to harm him and therefore he returned to Bangladesh.  He married and had a daughter in 2012 but was not employed.  The Applicant continued to support AL.  In June 2012, the Applicant got into an argument with the same uncle over ownership of his deceased father’s land and his continued membership of AL.  This led to a fight but neither suffered any injury.  This incident was not reported to the police by the Applicant as it was a family matter.  However, a complaint was brought by his uncle.  He was arrested, prosecuted for common assault and sentenced to two months in prison.  He was released in September 2012 and continued to support AL.  The Applicant decided to leave Bangladesh once more and applied for a passport without difficulty but did not leave at that stage.  In January 2013, there was a further argument between the Applicant and his uncle which concerned the Applicant’s continued support for AL.  This led to another fight in which the uncle and the Applicant were both injured.  The Applicant was arrested once again and detained for two weeks.  He [made] no complaint about his treatment during this period.  The Applicant was given bail pending a trial for common assault but was then led to believe a further “false” complaint had been made against him by his uncle and so the Applicant fled.  He eventually left Bangladesh for China on 10 May 2013, from where he entered Hong Kong illegally once more.”

6.  By two decisions dated 1 September 2016 and 20 July 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3] grounds, and the second decision was an assessment of the BOR 2 risk^[4].

7.  The Board held an oral hearing on 17 August 2017 to hear the applicant’s appeal, during which the applicant answered questions raised by the Board.  By its decision dated 13 December 2017, the Board dismissed the appeal with detailed reasons and analysis given in [119] to [180] of the decision.  In gist, the Board accepted the applicant had been assaulted by his uncle, but he had not reported to the police or any authority about the threats and assaults made by his uncle.  Having regard to what happened over the years and all the circumstances of the case, the Board considered that the applicant did not have substantial grounds for believing that, if he were refouled, he would be subjected to ill treatment or harm, and he had failed to show a reasonable likelihood of his fear materialising.  The Board also found there was no evidence that the applicant’s pain or suffering was inflicted by or at the instigation of or with the consent or acquiescence of the public official or person acting in official capacity.  The Board further found on the country of origin information (“COI”) that there was no basis to conclude that the Bangladesh government was unwilling to help the applicant for a Convention reason.  The Board concluded that none of the applicable grounds was made out, and dismissed the appeal.

8.  The applicant filed his Form 86 and supporting affirmation on 20 December 2017 to seek leave to apply for judicial review against the Board’s decisions.  In the two documents, the applicant stated that the Board’s decision was wrong and unfair in that his life remained in danger due to the threats from his uncle, who was powerful and well connected with politicians and police.  He also said in his supporting affirmation that he would try to get supporting document from his country. 

9.  After considering the papers, the Judge was of the view that the intended judicial review had no prospect of success, and refused to give leave.  She set out his reasons in [13] to [15] of the Form CALL-1 as follows:

“Leave to apply for judicial review

13. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

14. There were no grounds of review. He says simply that the decisions were wrong and unfair. The Applicant asks for a re-hearing of his appeal and wishes to submit further documentation but has failed to do so despite the eight months’ time lapse since the submission of his Form 86. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

15. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.”

10.  The Notice of Appeal filed on 18 September 2018 only stated that the applicant needed time to obtain his supporting document from the hospital of his country, but he was not given the time to do so.  It did not set out any other ground of appeal.

11.  We do not consider the complaint about not being given time to obtain supporting document constitutes a valid ground of appeal.  It is true that the applicant had stated in his affirmation in support of his application for leave to apply for judicial review that he needed time to get supporting document from his country.  It is, however, incorrect to say that he was not given time.  It was more than eight months after he filed his Form 86 that the Judge made the decision refusing his application. 

12.  Further, the certificate from the hospital that the applicant was trying to get from his country has no material bearing on the outcome of his non-refoulement protection claim and his appeal before the Board.  This is because the Board had accepted that he was assaulted by his uncle.  The Board, however, did not accept his uncle had close connections with BNP and further took note that the AL had won the elections in 2008 and again in 2014 such that any influence that the uncle might have by reason of his association with the BNP would have been reduced.    

13.  We also do not discern any error in the Judge’s reasons and conclusion that the intended judicial review has no reasonable prospect of success.  The applicant’s appeal has no merit, and is dismissed accordingly.