RE CHINA

CACV 120/2020

[2021] HKCA 971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 120 OF 2020

(ON APPEAL FROM HCAL NO. 2458 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 K.W. Lung given on 8 May 2020 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 (“Board”)  dated 26 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 22 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  She entered Hong Kong on 31 January 2015 to work as a foreign domestic helper.  She overstayed and was arrested on 25 March 2017.  She lodged a non-refoulement claim on 7 April 2017 and 9 May 2017. 

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 [3] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 22 February 2018 (“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 16 August 2018, the Board dismissed the appeal on 26 October 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [78] of the Board’s Decision, the Board held that there was a concern about the credibility of her claims.  The Board was also satisfied at [78] – [80] that state protection would be available to the applicant and at [78] that internal relocation would be viable.

The Judge’s decision

7.  The applicant filed a Form 86 and supporting affirmation on 5 November 2018 which contained the following grounds for judicial review, as summarized by the judge at [11] of the CALL-1 Form:

“(1)  the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;

(2)  the contents of the hearing bundle were in English and she was unable to obtain interpreter service;

(3)  she was confused at the appeal hearing;

(4)  BOR 2 risk was assessed without screening;

(5)  the Board had misdirected herself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future and had applied the wrong standard of proof;

(6)  the Board had applied the incorrect standard of proof;

(7)  the Board had not done sufficient research in the Country of Origin Information (“COI”)  and her knowledge was not updated;

(8)  the Board had relied upon hearsay information and outdated material in relation to COI;

(9)  the Board had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

(10)  the Board had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ)  “Report on the ICJ Mission to Bangladesh” Autumn 2011, which is favourable to her case;

(11)  the Board failed to fulfil her obligation to obtain the requisite documents for her adjudication;

(12)  the Board was wrong in state protection in her country;

(13)  the Board failed to call for psychological and psychiatric reports on the applicant; and

(14)  the applicant was not legally represented before the Board, which was in breach of procedural fairness.”

8.  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 [12] to [23] of the CALL-1 Form:

“12.  The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the Hearing Bundle and the Board’s Decision.

13.  I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

14.  It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

15.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

16.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”

17.  Grounds (1)  to (3)  fail as they are inconsistent with what the applicant said before this Court. Ground (4)  is simply not true.

18.  Grounds (5)  to (9), (11)  and (12)  are her opinions without any evidence in support of them. They fail.

19.  Ground (10)  fails as she did not refer those materials to the Adjudicator at the appeal hearing. They were not mentioned in the Board’s Decision. The applicant was unable to specify why those materials would support her claim.

20.  Ground (13)  fails because the applicant had not even raised this issue with the Board.

21.  Ground (14)  fails in light of the Court of Appeal’s decision.

22.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

23.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. Accordingly, I dismiss her application.”

Grounds for appeal

9.  In the Notice of Appeal dated 18 May 2020 and the affirmation in support filed on the same day, the applicant contended that:

“the [judge] was wrong in law in holding that there was no state acquiescence or involvement.

the [judge] failed to provide detailed reason in support of this decision.”

10.  The applicant failed to comply with the direction made by this Court on 29 August 2020 requiring her to lodge skeleton submissions 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.

11.  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.

12.  The hearing date on 15 December 2020 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

13.  The judge discussed the ground for judicial review related to state protection in [11(2)] and [18] of CALL-1 Form.  The judge considered that this ground failed because the applicant has failed to provide any evidence in support of this ground. 

14.  The applicant did not provide any explanation in this appeal as to why the judge was wrong in dismissing this ground for judicial review.  We have carefully considered the documents filed by the applicant in the court below and in this appeal and we cannot find any error in the treatment of this ground by the judge.

15.  As for the other ground of appeal, namely the lack of reasoning in the CALL-1 Form, the applicant has not provided any particulars to support this ground.  We have considered the CALL-1 Form and we are of the view that the judge has provided sufficient reasons in his decision.  This ground is also without merit.

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