RE KHAN MOHAMMAD SHAIDUL ISLAM

CACV 564/2020

[2021] HKCA 1095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 564 OF 2020

(ON APPEAL FROM HCAL 1497/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 3 August 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 7 May 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 11 June 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 29 March 2015 illegally and surrendered to the authorities on 30 March 2015.  He lodged a non-refoulement claim on 23 July 2015. 

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

4.  By a Notice of Decision dated 11 June 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 27 September 2018, the Board dismissed the appeal on 7 May 2019 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [82] – [88] of the Board’s Decision, the Board found that the credibility and reliability of the applicant’s claim were questionable and the Board held that the applicant would not face any risk of harm if he returned to Bangladesh.

The judge’s decision

7.  The applicant filed a Form 86 on 3 June 2019 which contained no ground for seeking relief.  He did not advance any ground for judicial review in his affirmations dated 3 June 2019 and 23 July 2020.

8.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

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 [11] to [15] of the CALL-1 Form:

“11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKXCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 41 – 88 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of 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.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

10.  The applicant was late in bringing his appeal from the judge’s decision.  After considering the explanation offered by the applicant and the situation of the postal service and the High Court Registry in the light of the prevailing public health situation, the judge granted an extension of time to appeal on 7 October 2020.

11.  In the Notice of Appeal filed on 20 October 2020, the applicant stated that:

“[the judge] totally failed to prove that my case should cancel, he could not show any cause for cancel my leave.”

12.  The applicant agreed by a letter of 20 October 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 21 May 2021 requiring him 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.

13.  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.

14.  The hearing date on 26 July 2021 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

15.  The only ground of appeal is essentially that the judge failed to give sufficient reasons for dismissing his application.  We note that the applicant did not advance any ground for judicial review in the court below.  Notwithstanding this, the judge considered the decisions of the Director and the Board with rigorous examination and anxious scrutiny before finding that there was no public law error in them and explaining his reasons for so finding.  In the circumstances, the judge has given sufficient reasons for dismissing the application and this ground of appeal is entirely without merit.

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