RE MAHMUD NASIR

CACV 360/2018

[2018] HKCA 981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 360 OF 2018

(ON APPEAL FROM HCAL NO. 809 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 20 July 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 20 October 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 9 September 2016 and 12 June 2017 rejecting his non-refoulement claim.

2.  The appeal was listed to be heard on 14 December 2018.  The applicant was directed to lodge a skeleton argument by 16 November 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 by the Notice of Hearing dated 31 October 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 in January 2004 as a visitor using the identity of Mahmud Nasir.  He was convicted of smuggling fake goods and sentenced to six months’ imprisonment.  He was deported to Bangladesh on 14 May 2004 under a lifetime deportation order.  In June 2006, the applicant re-entered Hong Kong using a different identity.  He was again convicted of smuggling fake goods and sentenced to six months’ imprisonment in addition to a 12-month sentence for breach of the deportation order.  He was deported to Bangladesh in June 2007. On 29 April 2015, the applicant came to Hong Kong again using his current identity and was given permission to remain as a visitor.  On 25 June 2015, he made a non-refoulement protection claim.  

5.  The applicant’s claim is based on his fear of being harmed or killed by supporters of the Awami League (“AL”) because he was a supporter of the Bangladesh Nationalist Party (“BNP”).  In gist, the applicant claimed that he became involved in the activities of the student wing of the BNP while he was in college.  He participated in rallies and protests held by BNP and had many conflicts with AL supporters, and had sustained various injuries.  In 2001, he was involved in the internal dispute of the BNP, as a result of which he was threatened and attacked by members who supported the opposite faction. Fearing for his safety, he left for Hong Kong using a false identity.  After he was deported back to Bangladesh, he resided in his relative’s place.  He felt he would be in danger since the AL won the election and was in power.  He therefore came to Hong Kong again using a different identity.  When he was back in Bangladesh after the second deportation, he resumed his involvement with the BNP.  Beginning 2010, he received death threats and was twice attacked by AL members, so he moved around and lived in different places.  After the 2014 election, the police looked for him at his mother’s place in connection with certain false criminal charges instigated by the AL supporters.  He decided to leave for Hong Kong for the third time after he was beaten by police during a demonstration organised by the BNP.    

6.  By two decisions dated 9 September 2016 and 12 June 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 applicant appealed to the Board.  The appeal was heard on 28 June 2017, during which the applicant answered questions raised by the Board.  By its decision dated 20 October 2017, the Board dismissed the appeal. For the reasons given in [28] to [40], the Board found the applicant was not a witness of truth and that no credence could be attached to any of his claims.  The Board therefore concluded that none of the applicable grounds was established.

8.  The applicant filed a Form 86 on 26 October 2017 seeking leave to apply for judicial review against the Board’s decision on the following grounds:

(1) The Board unlawfully fettered his discretion by refusing the applicant’s appeal on the ground that he did not satisfy the requirements.

(2) The Board acted in a procedurally unfair manner in dealing with the applicant’s appeal

(3) The Board’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense or was as a result of procedural errors or unfairness.

(4) The Board failed to meet he greater care and duty owed to a self-represented claimant. 

9.  As requested by the applicant, an oral hearing was held on 7 March 2018 to hear the leave application.  The hearing was adjourned to 23 May 2018 to await the outcome of his appeal against the refusal of legal aid. The applicant was, however, absent at the adjourned hearing.  The Judge proceeded to consider the application.  He concluded that the intended judicial review had no prospect of success, and refused to give leave to apply for judicial review.  He set out his reasons in [13] to [18] of the Form CALL-1 dated 20 July 2018, [2018] HKCFI 1550:

“13. [The grounds] are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case, except with what I can discern as his criticism of procedural unfairness over the late provision of the hearing bundle for his appeal just six days before his appeal hearing before the Board, and with the majority of the documents including the Director’s skeleton submission in the bundle were in English that there was insufficient time for him to prepare for his appeal or to find an interpreter to assist him.

14. Even assuming that the bundle was indeed given to him only on 20 June 2017 as alleged, and I note that he has not produced any documentary proof such as the letter from the Director which accompanied the bundle, with his oral hearing before the Board was scheduled on 28 June 2017 and hence it was eight days and not six days as asserted, before his appeal hearing, it is plain to me that most of the documents including his NCF, his record of screening interviews and the Director’s decision had in fact been made available to him earlier when he still had legal representation and hence he should be well familiar with, whilst he was assisted by an interpreter at his appeal hearing during which he never raised any issue over the late provision of the hearing bundle nor made any request for further time to prepare for his appeal. In the circumstances I do not see anything amiss arising from the provision of the hearing bundle.

15. As for his complaint that the Board has significantly relied on source of news not officially recognized or is simply hearsay or outdated which he said led to the Board making groundless speculations that it would be safe for him to return to Bangladesh, again the applicant did not provide any particulars or specifics as to which COI were so as alleged, and upon close examination of those listed and referred to by both the Director and the Board, I am unable to find any basis for the applicant to make such assertions, or for that matter any merits in any of his grounds referred to above.

16. I should also note that after the applicant failed to attend the oral hearing earlier requested by him in his present application, for which he did not provide any explanation but he then went on to submit certain documents to court including some local newspapers clippings all in Bengali without translation, and poor copies of what appear to be some court documents, with translation, issued out of certain senior judicial magistrate court in Bangladesh of two civil cases filed by a certain plaintiff against a list of people over certain incidents involving assaults and violence. Given the absence of any accompanied explanation or elaboration from the applicant as to the relevancy of these documents to his claim and his unexplained absence from his oral hearing for his leave application, I fail to see why these documents should be accepted or considered by the court at this stage of the proceedings.

17. The fact is that the applicant’s claim was rejected essentially on his credibility by the Board for its detailed analysis and reasons set out in paragraphs 28 – 42 of its decision, and as it been held that the evaluation of evidence is essentially a matter for the Director and the Board who are entitled to make such evaluation based on the evidence available to them, and the court will not usurp their role as primary decision makers, and that judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error: see Re Lakhwinder Singh [2018] HKCA 246.

18. In the premises and having proceeded to consider the decisions of both 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.”

10.  The Notice of Appeal dated 1 August 2018 advanced the following grounds of appeal:

(1) The applicant would face hardship if he were to return to his home country.

(2) The Board relied on news that was not officially recognised or was simply hearsay. There was also reliance on cases that are outdated considering the dramatic changes.  The lack of credible source of information has resulted in the making of groundless speculations.

11.  The grounds of appeal are entirely misplaced.  The applicant has not pointed to any error in the Judge’s reasons or decision. There is thus no valid basis for us to interfere with the Judge’s decision. 

12.  In any event, Ground (1) is untenable given that the Board found the applicant’s account to be incredible.  Ground (2) has no relevance to the case at all.  Having found the applicant’s account to have no credence, the Board did not have to, and in fact did not, consider any information or news of the country of origin.

13.  For the above reasons, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.