RE SUMON MIA

CACV 147/2018

[2018] HKCA 534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 147 OF 2018

(ON APPEAL FROM HCAL 914 OF 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 on 27 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Bangladesh. He entered Hong Kong illegally and was arrested by the police on 9 March 2008. He was referred to the Immigration Department for investigation and raised a non-refoulement claim on 22 March 2008.

2.  According to the applicant, he joined Jubo Dal, the local youth wing of the political party Bangladesh Nationalist Party in 1998.  One day in 2005 the applicant together with two other members of Jubo Dal were told by the party president to collect money from the village head (JU) and also the leader of the rival political party Awami League in the village.  JU handed over 300,000 Taka to the applicant’s group after being threatened.  One day in 2007 the applicant heard that JU had filed an extortion case to the police against him and other members of his group.  The applicant then fled to Hong Kong in 2008.

3.  The Director decided against the claim on 23 November 2016.  The decision covered BOR 2 risk, BOR 3 risk, persecution risk and torture risk (“Director Decision”). 

4.  The applicant appealed to the Torture Claims Appeal Board.  The Board held a hearing on 20 September 2017.  The Board dismissed the appeals on all applicable grounds (including BOR 2 risk) on 3 November 2017 (“Board Decision”).

5.  The intended judicial review was in respect of the Board Decision only.  The Form 86 filed by the applicant on 20 November 2017 contained the following grounds for judicial review:

(1) that the Board unlawfully fettered its decision by refusing his appeal on the ground that it did not satisfy the requirement;

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

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

(4) that the Board failed to meet the high standard of fairness owed to self-represented claimant.

6.  There were no particulars for any of the grounds above.  In his affirmation dated 20 November 2017, the applicant gave the following particulars for some of the grounds for judicial review:

(1) that the hearing bundle with documents all in English was provided to him just six days before his appeal hearing before the Board and therefore afforded insufficient time for him to properly prepare for the hearing; and

(2) that the Board had relied on sources of news not officially recognized or that were simply hearsay or outdated in arriving at the groundless speculation that it would be safe for him to return to Bangladesh.

7.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [10] to [15] of the CALL-1 Form of 27 April 2018:

“10. For the first complaint the applicant claims that he was given the hearing bundle on 13 September 2017 with only six days to prepare for his appeal hearing before the Board on 20 September 2017, while all the documents were in English for which he could not afford the assistance of any interpreter, and hence it was procedurally unfair to him in the appeal.

11. Even assuming that indeed he was only provided with the hearing bundle by the Director on 13 September 2017, he must be well familiar with most of the documents including his own non-refoulement claim forms, records of his screening process before the Immigration Department, as well as the Director’s decision, all of which he already had access to earlier when he had legal representation.

12. Furthermore, I note that both his Form 86 and his supporting affirmation are in English but which he had signed and affirmed to without requiring any interpretation, and that when he attended the oral hearing before the Board and with the assistance of interpreter, he never raised any of the above complaints to the adjudicator. In the premises I do not see anything amiss arising from any late provision of the hearing bundle to him in the process of his appeal before the Board, nor do I see any merit in this complaint of his.

13. As for his complaint of the Board using unreliable or outdated COI in its assessment of his safe return to Bangladesh, again the applicant has failed to provide any particulars or specifics for such complaint which is clearly his burden to do so, and upon examining those COI referred to by both the Director and the Board, I do not find any basis or merit in this complaint of the applicant either.

14. In the premises and having considered both the decisions of 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.

15. 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.”

8.  In the notice of appeal of 9 May 2018 the applicant did not give any ground for appeal. 

9.  On 7 June 2018, the Registrar of Civil Appeal gave directions for the listing of the appeal and for the filing of a skeleton argument not later than 28 days before the date fixed for the hearing of the appeal, failing which the hearing would be vacated and the appeal dealt with on paper.  On 11 June 2018 the applicant was notified of the hearing date and reminded to comply with the directions given. 

10.  Notwithstanding this, the applicant failed to lodge any skeleton submissions by the stipulated time, and on 30 July a letter was sent to him to inform him that the hearing date had been vacated. 

11.  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.  As such, the hearing date was vacated, and we have processed this appeal on paper based on the available material.

12.  Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations.

13.  The applicant did not give any grounds for appeal in the Notice of Appeal.  He did not file any skeleton submissions.  We have nonetheless considered the grounds for judicial review in the Form 86 and the particulars for some of those grounds in his affirmation dated 20 November 2017. 

14.  In relation to the complaint about the late provision of the bundle, we agree with the judge’s observation that the applicant already had access to most of the documents in the bundle when his claim was before the Director.  Also, the applicant appears to be proficient in English himself or has access to language assistance.

15.  Like the judge, we find that the applicant’s complaint about the COI lacks particulars and has no merit.  Further, we note that the Board rejected the applicant’s evidence at §34 of the Board Decision and the applicant did not appeal against this finding of fact. 

16.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.