RE MD BABU MIA

CACV 220/2018

[2018] HKCA 928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2018

(ON APPEAL FROM HCAL NO. 907 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 Deputy High Court Judge Bruno Chan (“the Judge”) given on 1 June 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 2 June 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 27 May 2015 and 26 October 2016 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 14 November 2018.  The applicant was directed by the Registrar of Civil Appeals to lodge a skeleton argument not less than 28 days before the hearing and was warned that should he fail 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 letter dated 13 August 2018 and a reminder was given in the Notice of Hearing dated 16 August 2018.

3.  The requirement for lodging 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 material 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 the abandonment of the right to an oral hearing. 

4.  The applicant failed to lodge a skeleton argument by the stipulated time.  The hearing of the appeal was accordingly vacated and this was notified to the applicant by the Court’s letter dated 23 October 2018 from the Court.  We have proceeded to consider this appeal based on the available materials before us.

5.  The applicant is a Bangladeshi national.  He entered Hong Kong on 5 April 2009 and was given permission to remain as a visitor until 13 April 2009.  He overstayed, and was arrested by the police on 12 May 2009.  On 15 May 2009, he raised a claim for non-refoulement protection on the basis that if he were to be refouled to Bangladesh, he would be harmed or killed by the supporters of the Awami League because he was a supporter of the Bangladesh Nationalist Party.

6.  The applicant’s case was set out in detail in the decisions of the Director and the Board.  It is not necessary to repeat them here. 

7.  By a Notice of Decision dated 27 May 2015 and a Notice of Further Decision dated 26 October 2016, 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 further decision covered the BOR 2 risk[4] ground.  

8.  The applicant’s appeal against the Director’s decisions was dismissed by the Board on 2 June 2017, after an oral hearing was held on 1 December 2016.   

9.  On 13 June 2017, the applicant filed a Form 86 in HCAL 290 of 2017 to apply for leave to judicially review of the Board’s decision.  At his request, the application was listed for an oral hearing on 18 August 2017 before Deputy High Court Judge Woodcock.  The applicant did not attend the hearing.  Deputy High Court Judge Woodcock proceeded to consider the application on the materials before her.  She refused to grant the application and gave her reasons in [20] to [27] of the Form CALL-1 dated 8 September 2017.

10.  On 17 November 2017, the applicant filed another Form 86 in HCAL 907 of 2017 applying again for leave to judicially review the decision of the Board. 

11.  The judge heard the application at an oral hearing held on 29 May 2018.  The Judge refused the application and gave his reasons in [8] of the Form CALL-1 dated 1 June 2018, [2018] HKCFI 1201 as follows: 

“8. Clearly the principle of res judicata applies and it is an abuse of the court process by the applicant after his application has already been properly disposed of by Deputy Judge Woodcock in HCAL 290/2017. Accordingly I refused his request to postpone the hearing of his leave application, for which he did attend as scheduled but failed to give any explanation or reason why he should be allowed to make another application for judicial review of the Board’s decision. In the circumstances his leave application is dismissed.”

12.  The Notice of Appeal dated 12 June 2018 did not set out any grounds of appeal, but referred to the applicant’s affirmation filed on the same date, which contained the following grounds of appeal:

(1)   The Judge was wrong in law in holding that there was no state acquiescence or involvement.

(2)   The Judge failed to provide detailed reasons for his decision.

13.  Ground (1) is misplaced.  Contrary to the applicant’s assertion, the Judge did not refer to, let alone make any holding on the issue of state acquiescence or involvement.  Ground (2) is also unarguable.  The Judge dismissed the application on the basis that the re-litigation amounted to an abuse of process, and his reasoning was clearly set out in the Form CALL-1 (see [11] above).   

14.  We would additionally point out that this second application for leave to apply judicial review was made out of time, being brought more than three months from the date of the Board’s decision.  No explanation was offered for the delay.  For this reason alone, the application would have to be dismissed.  In any event, the Judge was plainly correct in dismissing the leave application as an abuse of the court process.     

15.  For the above reasons, we dismiss the appeal.