RE MD WAHID

CACV 128/2019

[2019] HKCA 1056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 128 OF 2019

(ON APPEAL FROM HCAL 1560 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 8 March 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 551, refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 16 July 2018 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) respectively dated 20 October 2015 (“the Director’s Frist Decision”) and 8 December 2016 (“the Director’s Second Decision”).

2.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.  The appeal was listed to be heard on 27 August 2019.  The applicant was directed to lodge three sets of skeleton argument by 30 July 2019 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The directions and the warning were communicated to the applicant by the Notice of Hearing dated 25 June 2019.

4.  The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance with such requirement can substantially impair 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.  In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not to be permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

5.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated.  We have proceeded to consider this appeal on paper based on the available materials.

Background

6.  The applicant is a national of Bangladesh.  He entered Hong Kong on 2 March 2005 and was permitted to remain as a visitor until 16 March 2005. He overstayed and was arrested by the police on 4 February 2007.  He lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 9 March 2007.  His torture claim was rejected on 18 May 2011 and upon a removal order he was removed to Bangladesh on 18 July 2011.  On 10 June 2013, the applicant entered Hong Kong again illegally and was arrested on 25 June 2013.  He lodged a refugee claim with the United Nations High Commissioner for Refugees and also a subsequent torture claim and non-refoulement protection under the Unified Screening Mechanism (“USM”) by way of written representations dated 1 July 2013, 13 July 2013 and 1 March 2014.

7.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 -7 of the Director’s First Decision, and paragraphs 3 - 19 of the Board’s Decision.

8.  Briefly stated, the applicant claimed that if he were to return to Bangladesh, he would be harmed or killed by his ex-business partners, Wahidul, Shiplu and Aminul (“Business Partners”), and a gang of Awami League (“AL”) associated robbers.  On 1 January 2005, the applicant said he witnessed a robbery in a garage.  Although the robbers wore helmets or masks, the applicant were able to identify them as members of AL.  A week later, he was assaulted on the street by the robbers with hockey sticks and wooden sticks.  He was hospitalized for about two weeks.  When he returned home, he received a short letter threatening him to leave Bangladesh or his life would be in danger.  The applicant believed that the letter was from the robbers who did not want him to testify against them.  He then stayed in Hong Kong before he was deported back to Bangladesh.  When he returned, AL was the ruling party in the home country.  He started a new business in around early 2012 with the Business Partners.  After five or six months, the Business Partners expelled him from the business because the AL members started hunting the applicant down again.  They threatened the applicant to leave without his initial capitals otherwise they would impose false drug-related charges against him or informed the AL members of his whereabouts.

The Director’s Decisions and the Board’s Decision

9.  By the Director’s Decisions, the Director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4].

10.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 16 March 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board dismissed the applicant’s claim.

11.  The Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds.  The Board found that the information given by the applicant was contradictory and untruthful. Further and in the alternative, the Board concluded that the gang members who were still looking for the applicant would not be able to locate the applicant once he left his home village.  Thus, the perceived harm, if any, was localized.  In any event, state protection and internal relocation were available to the applicant.  (See paragraphs 52 ‑ 84 of the Board’s Decision.)

The Deputy Judge’s Decision

12.  The applicant filed a Form 86 on 7 August 2018 seeking leave to apply for judicial review against the Director’s Decisions and the Board’s Decision. He also filed a supporting affirmation on the same day.  The Deputy Judge had succinctly summarized the applicant’s grounds for judicial review at paragraph 12 of the Deputy Judge’s Decision:

“12.  In his affirmation in support of his application dated 7 August 2018, the applicant set out the reasons in support of his application, which I shall summarize below:

(1)  the Director and the Adjudicator had committed procedural impropriety in the process because they did not take heed of that the state government should reform to give effective redress of his problem; failing to make independent inquiries to the COI themselves and they cherry-picked the information to his detriment and they failed to consider the issue of extended state acquiescence; and

(2)  the Decisions of the Director and the Board were unreasonable because they did not appreciate the danger that he would face if refouled to Bangladesh.”

13.  The Deputy Judge heard the leave application on 4 January 2019.  Having considered the documents and hearing the applicant in court, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 13 - 20 of the Deputy Judge’s Decision:

“DISCUSSION

The Director’s Decisions

13. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

14. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

15. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

16. The applicant’s claim is facts sensitive. If he fails to establish the facts before the Board, he would have no factual basis for his claim. The Adjudicator had found that his evidence was untrue. See paragraph 48 of the Board’s Decision.

17. Facts are to be found by the Director or the Board. The Court of Appeal held in Ali Haider CACV 8/2018, [2018] HKCA 222 at:

‘13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….’

‘14. Determination of the merits of a non‑refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

18. The applicant had appeared before me and he confirmed that he had no complaint against the Adjudicator and considered that he had had a fair hearing before the Adjudicator.

19. Ground (1) is either his opinion without any evidence to support or it was within the discretion of the Adjudicator as to weighing of the evidence to come to a conclusion in relation to the facts of the matter. This ground fails.

20. Ground (2) fails as it is only his opinion. The facts had been found by the Adjudicator.”

Grounds for appeal

14.  The applicant filed the Notice of Appeal dated 18 March 2019 to appeal the Deputy Judge’s Decision.  He advanced his grounds of appeal as follows:

“1. The learned Judge had erred in concluding that there was no failure to adhere to a high standard of fairness at common law. There are minimal standard of procedural fairness required in decision making process. The decision maker is under a duty to act fairly.

2. the learned Judge failed to make sufficient enquiry before finalizing the decision. The learned Judge concluded that the applicant’s grounds for leave to apply for judicial review of the decisions of the director and the adjudicator were very broad and vague without advising and/or inviting the applicant for further elaboration.” [sic]

Discussion

15.  Judicial review is not a rehearing or re-assessment of the merits of an applicant's non-refoulement claim.  The function of the judge in judicial review is to review the legality and rationality of the decisions of the Board or the Director, who are the primary decision makers, and the propriety and fairness of the process by which the decisions are arrived.  The burden is on the applicant in a judicial review to show there are proper grounds on which the Court may grant the relief he sought: Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  Bearing these principles in mind, the applicant’s complaint against the Deputy Judge is misconceived.

17.  First of all, whether “high standard of fairness” was maintained or whether the decision makers had acted fairly was not an issue before the Deputy Judge.  The applicant confirmed to the Deputy Judge that he had no complaints against the adjudicator (the Board) and that he had had a fair hearing before the Board. Bearing in mind that the determination of merits (including evaluation of the evidence) is essentially a matter for the Board, the Deputy Judge rightly upheld the Board’s Decision because the applicant had not shown that the Board committed procedural impropriety.  It was within the Board’s discretion to weigh the evidence before making the finding of facts.  We see no errors in the Deputy Judge’s approach and this is not a viable ground of appeal.

18.  Secondly, the Deputy Judge already held an oral hearing for the applicant.  The applicant had full opportunity to explain or make submissions orally to the Deputy Judge at the hearing as to whatever details he wished to say in support of his complaints about the Board’s Decision.  If he did not do so, it cannot be a legitimate complaint that the Deputy Judge should somehow take his own initiative to ask the applicant for details.  We also cannot accept this as a valid basis in support of the appeal.

19.  In any event, we have reviewed the Board’s Decision and the Deputy Judge’s Decision, and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  It is plainly right for the Deputy Judge to hold that the Board had made no errors in law or procedure.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

20.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.