RE MIHA MD LIMON

CACV 40/2018

[2018] HKCA 278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 40 OF 2018

(ON APPEAL FROM HCAL 184 OF 2017)

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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 (“the judge”) dated 8 February 2018 refusing leave to the applicant to apply for judicial review. The applicant came from Bangladesh. He entered Hong Kong illegally and was arrested by the police on 11 July 2013. He lodged his non-refoulement claim on 17 July 2013. His claim was based on his fear of being harmed, or even killed, by people from a rival political party, the Awami League (“AL”). It was also his fear that he would be arrested by the Bangladeshi police because of false charges against him.

2.  By the Notice of Decision dated 8 December 2014, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director considered that the applicant’s fear would be unlikely to materialize because of the low intensity and low frequency of the ill-treatment from the AL people.  The availability of state protection and the possibility of relocation also would lower the level of risk of ill-treatment.  The decision covered BOR 3 risk, torture risk, and persecution risk. 

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 28 July 2015, the Board dismissed the appeal on 20 December 2016.

4.  The Director also, by the Notice of Further Decision dated 5 April 2017, assessed BOR 2 risk in respect of the applicant and decided against him.  The applicant did not appeal to the Board in respect of the Director’s further decision.

5.  It appears that the intended judicial review was in respect of the Director’s further decision, as the reference number of that decision was stated in the Form 86 filed by the application on 5 May 2017.  The Form 86 did not state any grounds on which the relief was sought.  The applicant exhibited to his supporting affirmation a list of answers he gave on 9 December 2013.  The answers simply recounted the events on which his non-refoulement claims were based.

6.  Since the applicant did not give adequate information to the court in respect of his application for leave to apply for judicial review, Patrick Li J, the judge designated to coordinate leave applications from unrepresented torture claim applicants, sought assistance from the applicant, the Director and the Board. Copies of the decisions were provided by the Director and the Board respectively. After the decisions were available, the case was referred to the judge for consideration. 

7.  On 8 February 2018, the judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and of the Board, the judge gave the following reasons at [11] for his refusal to grant leave:

“11. On 5 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but in his supporting affirmation of the same date he failed to set out any grounds except exhibited his earlier four-page answers dated 9 December 2013 submitted to the Immigration Department in respect of their questions raised over his claim when he was unable to attend the earlier interview scheduled by the Department referred to above. There is therefore simply no ground at all presented by the applicant in support of his leave application, and upon rigorous examination and anxious scrutiny, neither do I find any error in law or procedural unfairness in the decision of either the Director or the Board nor any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.”

8.  In the Notice of Appeal dated 13 February 2018, the applicant stated that:

“Appeal is refused even have risk of Life in Torture in my country [05-02-2018 our party leader get inside prison] Seeking help for saving my life.” (sic)

9.  It was further stated in the Notice of Appeal that the applicant would like to have some time to submit his documents. 

10.  By his letter of 16 March 2018 (which was wrongly dated as 2017), the applicant requested to have an oral hearing to be heard by 3 judges.

11.  Pursuant to the directions made by Lam VP on 21 March 2018, the appeal was fixed to be heard on 26 April 2018.  It was further directed that skeleton submission should be lodged on 12 April 2018, failing which the hearing date would be vacated and the appeal would be processed on paper based on the materials already lodged.

12.  The applicant failed to lodge any skeleton submissions by the stipulated time.  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.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  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. As such, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

13.  After reviewing the materials available before us, we agree with the judge that leave to apply for judicial review should be refused.

14.  The information regarding the imprisonment of the leader of his political party is a bare assertion of the applicant.  The applicant did not provide any documentary evidence in support.  More importantly, even if it is supported by evidence, the evidence has never been advanced in the proceedings below.  As we have previously held, the rule in Ladd v Marshall [1954] 3 All ER 745 limiting the circumstances under which fresh evidence can be admitted on appeal is generally applicable in non‑refoulement appeals though the court may relax it where there are exceptional circumstances warranting the same: Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Zafar Muazam [2018] HKCA 176, and Re Romail [2018] HKCA 186.  In light of the finding of both the Director and the Board that there was no involvement of the state in respect of the attack by the AL people, the evidence relating to the imprisonment of his political leader would not have affected the judge’s conclusion that the intended judicial review has no realistic prospect of success.  The second limb in Ladd v Marshall (supra) is therefore not met.  We do not see any exceptional circumstances in the present case warranting the relaxation of the rule. 

15.  We also note that, in the answers exhibited to his supporting affirmation, the applicant stated he suffered only minor injuries as a result of the attack.  No medical attendance was needed.  Accordingly, there is no reasonably arguable basis for the applicant to demonstrate the minimum level of severity for the invocation of non-refoulement protection.  It is clear that the applicant failed to meet the high threshold required by the law in this respect: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174], and GA v Director of Immigration (2014) 17 HKCFAR 60 at [47] to [51]. 

16.  On the facts of this case, we cannot see any additional basis for advancing a claim under BOR 2 other than those relied upon in respect of the torture risk, the BOR 3 risk, and the persecution risk.

17.  Having read the materials available before us, we are of the view that the findings of the Board and the Directors, as well as the observations of the judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Director and the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  We do not see any reasonable basis to challenge the decisions of the Director and the Board by way of judicial review.  Accordingly, we agree with the judge that leave to apply for judicial review should be refused.

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