RE HOSSAIN MD KHABIR

CACV 396/2019

[2021] HKCA 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 396 OF 2019

(ON APPEAL FROM HCAL NO. 330 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 14 August 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 22 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested by the police on 26 November 2014.  He lodged a non-refoulement claim on 29 November 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [13] of the CALL-1 Form.

4.  By a Notice of Decision dated 25 July 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 29 November 2017, the Board dismissed the appeal on 22 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [41] of the Board’s Decision, the Board found that there is nothing to suggest that the applicant will be subject to any of the proscribed harm upon his return. The Board was also satisfied at [37] that internal relocation would be viable.

The Judge’s decision

7.  The applicant filed a Form 86 on 2 March 2018 which contained the following grounds for judicial review, summarised below:

(1)  The Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  The Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  The Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

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

(5)  The hearing bundle for the hearing before the Board was provided at a late stage. Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(6)  The unfair hearing led the Board to wrongfully question his credibility; and

(7)  The Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return.

8.  In his affirmation in support of the leave application dated 2 March 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage. Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the unfair hearing led the Board to wrongfully question his credibility; and

(3)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [34] to [50] of the CALL-1 Form:

“34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

35. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” 

36. The Applicant mentioned he did not have legal representation for appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 25 July 2017.

37. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

38. The Applicant raised his language problem.

39. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

40. In the current application, someone helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

41. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

42. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

43. The Applicant said he received the appeal bundle on 22 November 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 29 November 2017. The bundle was served on the Applicant in time.

44. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

45. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

46. The Applicant said he answered all the questions honestly in the Board hearing. That means he knew what was asked and how to answer. He was not confused.

47. There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.

48. The Applicant complained the Adjudicator ignored his injuries. That was not correct. The Adjudicator was alive to the Applicant’s allegation that he still needed treatment for his injuries after he had come to Hong Kong. However, that was merely part of the Applicant’s claim. The Adjudicator clearly had looked at the whole of the Applicant’s case. He had proper grounds to disbelieve the Applicant’s claim of risk.

49. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

50. The Applicant's complaints are not reasonably arguable. He has no reasonable prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.”

Grounds for appeal

10.  In the Notice of Appeal dated 28 August 2019 the applicant contended that:

“the Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

11.  The applicant failed to comply with the direction of this Court made on 18 September 2019 requiring him to lodge skeleton submissions by 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

12.  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.

13.  The hearing date on 17 December 2019 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

14.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.