RE TUTUL

CACV 205/2018

[2018] HKCA 552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 205 OF 2018

(ON APPEAL FROM HCAL NO 522/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 24 May 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Bangladesh. He first entered Hong Kong in December 2000 as a visitor. He overstayed and was arrested in July 2002. He was removed from Hong Kong in September 2002. The applicant then used a passport in another name and left Bangladesh in January 2004 and travelled between China and Hong Kong on many occasions before returning to Bangladesh in June for a month. He left again in July for China. He then travelled between China and Hong Kong on several occasions. The applicant last arrived in Hong Kong on 5 September 2004. He surrendered to the Immigration Department on 3 January 2012 having overstayed for over seven years from 7 September 2004. On 3 January 2012 he lodged a torture claim. It was processed as a non-refoulement claim.

2.  His claim is based on alleged threat from a man identified as Kalam.  In 2003, Kalam accused the applicant of killing Kalam’s cousin.  Kalam demanded money and beat the applicant until the applicant was unconscious.  Kalam kept making demands for money and threatened to kill the applicant.  The applicant allegedly left Bangladesh to flee from Kalam.

3.  The Director decided against the claims on 18 January 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s Decision”).  By a Further Decision of 21 November 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

4.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 24 November 2016, the Board dismissed the appeal on 11 August 2017 (“the Board’s Decision”).

5.  The intended judicial review was in respect of the Board’s Decision only.  The Form 86 filed by the applicant on 16 August 2017 did not contain any ground for judicial review.

6.  In his affirmation dated 16 August 2017, the applicant gave the following grounds for judicial review:

(1)  The Board failed to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(2)  The Board cherry-picked COI information and relied on outdated COI;

(3)  The Board failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(4)  The Board failed to analyse Bangladeshi state protection.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(5)  The Board took into account incorrect facts and failed to give weight to facts favorable to the applicant.  The applicant gave no particulars for this ground;

(6)  The Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(7)  The Board applied incorrect standard of proof. The applicant gave no particulars for this ground;

(8)  The duty lawyer failed at the first instance to give sufficient legal representation.  The applicant gave no particulars for this ground.

7.  The judge heard the applicant on 9 January 2018.  She reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [13] to [20] of the CALL-1 Form of 24 May 2018:

“ 13. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed material, claims and evidence with care. The same applies to the decision of the Director. The applicant’s grounds and complaints are not made out. I find no substance in the eight grounds of this application.

14. There are eight grounds in this affirmation and most contain no particulars. Those include grounds 5, 6, 7 and 8. As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation. For ground 7, the adjudicator certainly set out the correct standard of proof in his decision. There are no particulars here to illustrate where he has applied the incorrect standard. For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. These grounds have no merits.

15. In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up to-date Country of Origin (“COI”) information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. Again particulars have not been given in relation to these grounds. He had no reason to go into great detail considering the reason he dismissed the applicant’s appeal. The adjudicator did make reference to information in his decision that related to internal relocation. These grounds are not arguable.

16. Ground 3, a failure to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights, has no merits. Consideration of these concepts do not arise unless there is a substantial risk of a real personal chance the applicant will be tortured or ill-treated if refouled. In this case, the adjudicator made a finding there is no substantial risk or a real personal chance.

17. In addition, the applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

18. There is a criticism that the Immigration Department did not screen the BOR 2 risk before the TCAB but this is plainly misleading when the Director rejected that risk in November 2016 and the adjudicator of the TCAB rejected in August 2017.

19. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

20. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

8.  In the notice of appeal of 6 June 2018 and the affirmation of the same date, the applicant stated the following as his grounds of appeal:

“ 1. The Honorable (sic) Deputy High Court Judge Woodcock was wrong in law in holding that there was no state acquiescence or involvement;

2. The Honorable (sic) Deputy High Court Judge Woodcock failed to provide detailed reason in support of her decision.”

9.  In a document called Exhibit A attached to the affirmation of 6 June 2018, he repeated the 8 grounds of review set out in his affirmation dated 16 August 2017 placed before the judge.  He added a new ground (ground 1) at p.19 of Exhibit A that the Board misdirected itself on the law when assessing the risk of torture in the future.

10.  The applicant did not comply with the unless order made on 12 July 2018 that he should lodge skeleton argument on or before 31 July 2018.  No skeleton argument was lodged despite the Court’s direction that the applicant would be treated as waiving his right to an oral hearing if he did not lodge skeleton submissions in accordance with those directions and the Court would then process the appeal on paper.

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 by the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge at an appeal, including the effective management of the oral hearing.  This Court will not permit unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on court’s time due to 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 of 14 August 2018 was vacated when the applicant failed to lodge skeleton submissions by 31 July 2018. 

13.  The Court processed the appeal on the basis of the materials already lodged by the applicant.

14.  Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations.

15.  Before we address the grounds of appeal, it is necessary to highlight the following propositions:

(a)  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 scrutinizing 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, see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(b)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong, see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(c)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.  In respect of new arguments, this Court will not generally entertain new arguments which are fact and evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time, see Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(d)  Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

16.  In the present case, the Board rejected the applicant’s claim primarily on credibility and lack of substantial risk of harm.  The Board also found that internal relocation was viable.  The judge, after rigorous scrutiny, found no reasonably arguable basis to challenge those findings.

17.  The appeal must be considered in the above context. 

18.  The grounds of appeal of the applicant in the affirmation of 6 June 2018 are obviously without merit.  The judge did not refer to the concept of state acquiescence or involvement at all as the applicant did not advance any ground before her based on that concept.  Though there was reference to state protection (which is not the same as the concept of passive state acquiescence) in Ground 4 advanced before the judge, she had already adequately addressed it at [15] of the CALL-1 form.

19.  The judge did give reasons for her decision as set out in the CALL-1 form. 

20.  As we have said above, the regurgitation in Exhibit A of the grounds advanced and already considered and rejected by the judge cannot take the applicant further in this appeal.  The applicant failed to demonstrate any error on the part of the judge in rejecting these grounds.

21.  The applicant provided particulars of COIs which he alleged the Board failed to consider in Exhibit A which were not placed before the judge.  He did not make any application for admission for fresh evidence and he has not provided any reasons why he did not give these particulars in the Court below.  We are also not told if those COIs were placed before the Board.  In any event, the COIs he now referred to are dated 2010 and 2011 which appear to be older than the COIs relied upon by the Board.  The applicant did not satisfy the test in Ladd v Marshall, supra and we do not see any exceptional circumstances in the present instance to permit such fresh materials to be relied upon. 

22.  His further statements on procedural unfairness at p.21-22 of Exhibit A also take his case no further.  It was inaccurate for him to assert that there was no assessment of BOR 2 risk by the Director.  This flies in the face of the Further Decision of 21 November 2016, alluded to at [11] of the Board’s Decision.

23.  The new ground 1 at p.19 of Exhibit A is in substance an attack on the Board’s use of COI.  It adds nothing to the other grounds which the judge had adequately addressed.

24.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.