RE SHIPON MD

CACV 35/2019

[2019] HKCA 716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 35 OF 2019

(ON APPEAL FROM HCAL 1049 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 K W Lung (“the Deputy Judge”) set out in the Form Call‑1 dated 23 January 2019 refusing leave to apply for judicial review (“the Deputy Judge’s Decision”, [2019] HKCFI 136). The intended judicial review is against the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 24 April 2018 and the decision of the Director of Immigration (“the Director”) dated 18 January 2016 (“the Director’s First Decision”) rejecting the applicant’s non-refoulement claim.

2.  The appeal was listed to be heard on 14 May 2019.  The applicant was directed to lodge three sets of skeleton argument by 12 April 2019 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 19 March 2019.

3.  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.

4.  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

5.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 8 February 2014 and was arrested by the police for being an illegal immigrant on the same date.  He lodged a non-refoulement claim on 11 February 2014.

6.  The details of the applicant’s claim and his personal background were set out in paragraphs 6 - 30 of the Director’s First Decision.

7.  Briefly stated, the applicant claimed that if he were to return to Bangladesh, he would be arrested on false charges for which he had been framed.  The applicant claimed that he was an active member of Bangladesh Nationalist Party (“BNP”) and was elected to be the General Secretary of Bangladesh Jatiotabadi Chatra Dal (“the BJCD”) in April 2013.  The applicant claimed that the members of Awami League (“AL”) framed him and other officers of BNP for a weapon smuggling case and hence the police was looking to arrest them in around May 2013.  He further claimed that he was assaulted and threatened by members of AL in November 2013. In February 2014 and July 2015 respectively, his father was arrested for criminal offences by the local police because the police failed to locate the applicant and turned to target his father.  The applicant feared that if he were to return, he would face the fabricated offences and even if he was to be released on bail, the members of AL would be able to locate him.

The Director’s Decisions and the Board’s Decision

8.  In the Director’s First Decision, the Director assessed the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3].  The Director’s decision dated 12 June 2017 (“the Director’s Second Decision”) covered the BOR 2 risk^[4] assessment.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

9.  The applicant respectively appealed the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”) to the Board.  The appeal against the Director’s First Decision was heard on 8 December 2016, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, by a decision dated 24 April 2018, the Board concluded that the applicant had failed to establish a case for non-refoulement protection and dismissed his appeal against the Director’s First Decision (“the Board’s First Decision”).

10.  Although the Board attached credence to the fact that the applicant was involved in conflicts with his opposition political party and was ill-treated, the Board did not find that such treatments amounted to torture.  The Board found that the level of ill-treatments did not attain a minimum level of severe pain or suffering that amounted to torture as defined (paragraphs 48 ‑ 49 of the Board’s First Decision).  The Board also found that that there was no state acquiescence and that the applicant could seek state protection (paragraphs 50 - 71 of the Board’s First Decision).  The Board was of the view that internal relocation was not a question to be considered in the present case since there was no real chance that the applicant would be harmed or killed or without police protection (paragraphs 85 - 88 of the Board’s Decision).  Thus, the Board dismissed the applicant’s appeal against the Director’s First Decision.

11.  On 12 July 2017, the Board received the Director’s Second Decision.  On 24 April 2018, the Board dismissed the applicant’s appeal against the Director’s Second Decision (“the Board’s Second Decision”) without an oral hearing.  The Board found that it was not necessary to hold an oral hearing since the applicant failed to provide further documents and the BOR 2 risk assessment had no relevance to the applicant’s claim because there was no evidence suggesting that the applicant would be at risk of harm from capital punishment or any harm that would place his life at risk (paragraphs 2 - 5 and 9 - 10 of the Board’s Second Decision).

12.  The Board’s First Decision and the Board’s Second Decision will be referred to collectively as “the Board’s Decisions”.

The Deputy Judge’s Decision

13.  The applicant filed a Form 86 on 8 June 2018 seeking leave to apply for judicial review against the Director’s Decisions and the Board’s Decisions.  He also filed a supporting affirmation on the same day.  The Deputy Judge stated the applicant’s grounds for judicial review at paragraph 14 of the Deputy Judge’s Decision:

“14. ...

(1) the Director failed to maintain high standard of fairness;

(2) the Director did not appreciate state acquiescence and the collusion between the police and the political circles;

(3) the Director had selected the Country of Origin Information that suited his pre-conceived conclusion;

(4) the Adjudicator failed to make sufficient enquiry before making the determination;

(5) it was wrong for the Adjudicator to ask for evidence from the applicant because he was being detained in the centre; and

(6)   the Adjudicator did not give the applicant sufficient chance to arrange relevant evidence to support his case.”

14.  The Deputy Judge heard the applicant’s leave application on 28 November 2018.  The Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 15 - 26 of the Deputy Judge’s Decision:

“DISCUSSION

The Director’s Decision and Further Decision (‘the Director’s Decisions’)

15.   In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decisions.

16.   Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

17.   For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision and Further Decision (‘the Board’s Decisions’)

18.   The applicant appeared before me in the hearing. He confirmed that he was legally represented and had interpreters at the screening. He had an interpreter for the appeal hearing before the Board. He understood all the questions put to him by the Immigration officer and the Adjudicator and his answers to the questions are all true and correct. Furthermore, he said that he had no complaint against the Immigration officer or the Adjudicator of the Board.

19.   Grounds (1), (2), (4) are the applicant’s opinion, not supported by any evidence. They fail.

20.   Ground (3) is a matter of fact to be found by the Adjudicator. This ground cannot sustain.

21.   The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: ‘Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers.’

22.   At §14 of the same judgment, the Court of Appeal further said: ‘Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

23.   As to ground (5), the Adjudicator was entitled to ask him to adduce evidence to prove his case as the burden is on him. If he had any difficulty, he should tell the Adjudicator for his determination. This ground fails.

24.   As to ground (6), the applicant was unable to identify what evidence he would like to arrange for his case and how the Adjudicator had not given him the chance to make the arrangement. He had no complaint against the Adjudicator. This ground fails too.

25.   I find that the applicant was unable to show that he had reasonable chance of success in his judicial review.

CONCLUSION

26.   I find that the applicant has failed to show that his application for judicial review has any prospect of success. I refuse to grant leave for his judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

15.  The applicant filed the Notice of Appeal on 24 January 2019 to appeal the Deputy Judge’s Decision.  He set out the following two grounds of appeal in his supporting affirmation:

(1)   The Deputy Judge was wrong in law in holding that there was no state acquiescence or involvement (“the 1^st ground of appeal”).

(2)   The Deputy Judge failed to provide detailed reason in support of his decision (“the 2^nd ground of appeal”).

16.  The applicant also referred to an exhibit “A”, which was the Deputy Judge’s Decision the applicant sought to challenge.

Discussion

17.  Before considering the merits of the grounds of appeal, it is worth repeating the following now well-established principles.

18.  First, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  The primary decision maker to consider whether there was state acquiescence or involvement is the Director and the Board.  The court would and should not usurp the role of the Director or the Board and will only intervene if public law grounds for doing so are established.  See: Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; and Re Masoom Parvez [2018] HKCA 163.

19.  Second, an appeal against refusal of leave for judicial review is not an occasion for the applicants to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Deputy Judge if it could be demonstrated that there were errors in law, that the Deputy Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

20.  It must first be noted that the Deputy Judge was clearly correct in law to reject the applicant’s intended judicial review against the Director’s Decisions.  It is well-established that decisions of the Director are not amenable to review once an appeal is pursued before the Board: see Re Moshsin Ali [2018] HKCA 549 at [31] - [45].

21.  Insofar as the 1^st ground of appeal is concerned, in the Board’s First Decision, state acquiescence or involvement was fully considered by the Board.  The Board found that there was no state acquiescence or involvement and state protection was available to the applicant (paragraphs 50 - 71 of the Board’s First Decision).  It concluded that there was no scope for finding risk of torture based on the concept of state acquiescence or involvement.

22.  The Deputy Judge in his decision had carefully examined the Board’s Decisions and concluded that there was no public law ground to intervene in the Board’s Decisions.

23.  Other than making a general and vague complaint that the Deputy Judge was wrong, the applicant has not in this appeal identified specifically what are the errors committed by the Deputy Judge in his reasons.

24.  This is therefore not a valid basis which can show that the Deputy Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.

25.  There is nothing in this ground of appeal, which must be rejected.

26.  As to the 2^nd ground of appeal, it is clear from the Deputy Judge’s Decision that he has provided detailed reasons for his conclusion (paragraphs 15 - 26 of the Deputy Judge’s Decision).  This ground of appeal is also entirely unmeritorious.

27.  In any event, we have reviewed the Board’s Decisions and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

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