RE AKHIL SARKER

CACV 165/2020

[2020] HKCA 942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 165 OF 2020

(ON APPEAL FROM HCAL NO 1595 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 KW Lung (“the Deputy Judge”) as set out in the Form CALL‑1 dated 28 May 2020, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 962.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 3 August 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 November 2017 (the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The appeal was listed to be heard on 3 November 2020 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 6 October 2020 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 8 September 2020.

4.  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.

5.  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

6.  The applicant is a national of Bangladesh.  He entered Hong Kong as a visitor on 24 April 2006.  He overstayed since 9 May 2006 and was arrested on 7 January 2007.  He lodged a torture claim on 11 January 2007, which was refused on 31 January 2012.  He later lodged a non-refoulement claim in Hong Kong on 27 November 2013 and 28 November 2013 but withdrew via a letter dated 22 July 2014.  On 6 August 2014, he applied to re-open his non-refoulement claim.

7.  The details of the applicant’s claim and his personal background were set out at paragraph 10 of the Director’s Decision and paragraphs 24 - 32 of the Board’s Decision.

8.  Briefly stated, the applicant claimed that he would be harmed or killed by members of Bangladesh Nationalist Party (“BNP”) due to his support of Awami League (“AL”) and he would be persecuted by Muslims because of his minority Hindu religion upon return.  The applicant claimed that he was born Hindu, a group of people who had been subject to oppression from Muslims in his home village.  In 2001, as an AL supporter, the applicant helped AL in the election.  However, BNP won the election in the end.  Ten days after the election, the applicant was attacked and threatened by several Muslim BNP members.  In 2006, the applicant saw four men who had involved in the 2001 attack on the road.  The men slapped him, threatened to kill him and asked him why he didn’t vote for the BNP.  After this accident, the applicant believed that the BNP members targeted him.  Out of fear, he fled to Hong Kong for protection.  While he was in Hong Kong, he was told by his father in 2014 that the situation had settled down and he was safe to return.  He therefore withdrew his claim.  However, a few days later, he was told by his cousin that his father was killed by BNP members.  Thus, he re-opened his non-refoulement claim.

The Director’s Decision and the Board’s Decision

9.  In the Director’s Decision, the Director assessed the grounds other that the applicant’s claim on torture risk^[1] as it was refused on 31 January 2012.  The applicant’s claim was assessed on the grounds of the BOR 3 risk^[2], the persecution risk^[3], and the BOR 2 risk^[4]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

10.  The applicant appealed the Director’s Decision to the Board.  On 21 March 2018, the Board conducted an oral hearing, during which the applicant answered questions from the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection and dismissed his appeal against the Director’s Decision.

11.  The Board accepted that the applicant provided a relatively consistent and detailed account of the 2001 attack.  It also accepted that the applicant was Hindu and indeed attacked by members of BNP due to the conflict between AL and BNP.  However, the Board found that, although the applicant might be subjectively fearful of the BNP supporters, there was no evidence that the applicant was seriously injured by BNP members or that the death threats from the BNP members were intended to be acted upon.  Further, the Board found that the 2006 attack was not plausible as the applicant confirmed that the BNP members showed limited interest in him in the intervening five years’ period.  The Board also found the applicant’s claim of his father being murdered by BNP members to be suspicious.  Thus, it did not accept that the applicant remained as BNP’s target and thus there was no real risk that he would be subject to physical harm by BNP members upon his return to his hometown (paragraphs 39 - 59 of the Board’s Decision).  As to the applicant’s fear of harm from the Muslims, although the Board accepted that Hindu was indeed a minority and vulnerable group in Bangladesh, it considered that the risk of harm depended on personal circumstances.  Based on its assessments that the applicant would not face real risk of harm from the BNP members, who the applicant claimed to be Muslims, and the relevant country of origin information, the Board found the applicant’s risk of harm from the Muslims to be remote (paragraphs 60 - 74 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

12.  The applicant filed his Form 86 on 10 August 2018 seeking leave to apply for judicial review against the Board’s Decision.  He did not advance any grounds of review but simply stated in his supporting affirmation filed on the same date that his life would be in danger if he returned to his country.

13.  The Deputy Judge heard the applicant’s leave application on 12 July 2019.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in [12] - [16] of the Deputy Judge’s Decision:

“12.  The applicant appeared before me and he confirmed that he was able to speak freely and tell his stories fully before the Board.

13.  I put those findings to him and asked him for his comments. He said that he had no comments.

14.  It is clear that the Board rejected the main facts in support of his claim.

15.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board has committed any error in coming to its decision.

16.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Grounds for appeal

14.  The applicant filed the Notice of Appeal on 10 June 2020 to appeal the Deputy Judge’s Decision.  The applicant simply stated that the Board did not consider his fear and his danger and that the Board also did not consider his BOR 3 risk.

Discussion

15.  The relevant legal principles governing the appeal in non-refoulement cases are set out at paragraph 14 of Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

17.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Deputy Judge’s Decision with sufficient particulars and specifics.

18.  However, it is apparent from the Notice of Appeal that the applicant did not identify any errors committed by the Deputy Judge.  The applicant’s ground of appeal that the Board failed to consider his fear and to assess his BOR 3 risk is misconceived.  It is self-evident from the Board’s Decision that the Board assessed the applicant’s fear of harm from the BNP members as well as his fear of harm as a Hindu before it reached the conclusion that the applicant’s BOR 3 risk was unsubstantiated.  This is therefore not a viable ground of appeal.

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

Disposition

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