RE ALI MOHAMMED

CACV 262/2018

[2018] HKCA 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 262 OF 2018

(ON APPEAL FROM HCAL NO. 861 of 2017)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 June 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 1 November 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 December 2016 rejecting his non-refoulement claim.    

2.  The appeal was listed to be heard on 18 October 2018.  By the Court’s letter dated 26 July 2018, the applicant was informed of the direction of the Registrar of Civil Appeals to lodge skeleton argument by 20 September 2018, and he was also warned that if he failed to comply with the direction, he would be deemed to waive his right to have an oral hearing and elect to have the appeal disposed of on paper.  

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Due compliance with the requirement to lodge skeleton arguments is important for the proper and effective functioning of the appeal process since 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.  This Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement after being warned of the consequence of non-compliance is treated as the abandonment of the right to an oral hearing. 

4.  The applicant did not lodge any skeleton argument by the stipulated time.  The hearing date of the appeal was accordingly vacated, and we have proceeded to consider this appeal based on the available materials before us.

5.  The applicant is a Bangladesh national.  He arrived in Hong Kong on 16 April 2013 and was given permission to remain as a visitor until 30 April 2013.  He overstayed and was arrested by the police on 21 May 2013.  A removal order was made against him on 24 June 2013.  His appeal against the removal order was dismissed on 29 July 2013.  He lodged a non-refoulement claim on 7 March 2014 based on his fear of being harmed or killed by members of the Awami League because of his association with Bangladesh Nationalist Party and his refusal to make donation to AL.  

6.  The applicant’s account of events was detailed in the decisions of the Director and of the Board and summarized by the Judge in [2] to [4] of the Form CALL-1 dated 22 June 2018, [2018] HKCFI 1313.  It is not necessary to repeat them here.  

7.  By a Notice of Decision dated 22 December 2016, the Director rejected the applicant’s claim having regard to all the applicable grounds, namely, torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.      

8.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 28 August 2017.  The applicant elected to give evidence and had answered questions from the Board.  He also submitted a photograph to support his assertion that three days prior to the hearing, his father was attacked and severely injured in order to make him disclose the applicant’s whereabouts.  By its decision dated 1 November 2017, the Board dismissed the appeal.  For the reasons stated in [61] to [70] of the decision, the Board found the applicant was not a credible witness and his evidence was unreliable. The Board considered he had fabricated his claim and rejected his account, and concluded that he has failed to establish a case in respect of any of the applicable grounds. 

9.  The applicant filed his Form 86 together with a supporting affirmation on 9 November 2017 seeking leave to apply for judicial review against the decisions of the Board.  As summarised by the Judge in [9] of the Form CALL-1, the applicant advanced the following grounds in support of the relief claimed:

(1)   Failure to carry out sufficient research and inquiry into the country of origin information (“COI”).

(2)   Failure to take proper account of relevant COI and in improperly selection of or reliance on irrelevant or outdated COI.

(3)   Failure to properly evaluate and to find the existence of a consistent pattern of gross and mass violation of human rights in Bangladesh.

(4)   Failure to properly analyze whether state protection exists in Bangladesh.

(5)   Taking into account irrelevant consideration or inaccurate facts.

(6)   Failure to call for psychological and psychiatric evaluations and reports on the applicant.

(7)   Applying the incorrect standard of proof;

(8)   Lack of legal representation from the Duty Lawyer Service (“DLS”).

(9)   Failure to arrange an oral hearing for the applicant. 

10.  The Judge heard the leave application at an oral hearing. The Judge came to the view that the intended judicial review was not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review.  He set out the reasons in [10] to [12] of the Form CALL-1 as follows:

“10. These are all very broad and vague assertions containing a few pages of key words and phrases but without any particulars or specifics or elaborations by the applicant as to how they applied to his case, or how the Board or the adjudicator had erred in the decision, or in what way was his legal representation from DLS insufficient or how he may have been so prejudiced.

11. Furthermore, given the fact that the applicant’s claim was rejected essentially on his credibility, any attempt to challenge the Board’s decision on the basis of its reliance on COI to assess the general situations in Bangladesh appears to me both pointless and futile, while his complaint of not calling for any psychological or psychiatric evaluations in the process is unsupported by any medical reasons, and that it is plainly wrong for him to claim that no oral hearing was arranged for his appeal before the Board when in fact he did attend an oral hearing on 28 August 2017 during which he was able to give further evidence and answered questions from the adjudicator. I find none of these grounds to have any merits or basis at all.

12.    In the premises and having considered the decisions of both 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.”

11.  The applicant filed a notice of appeal on 25 June 2018.  He set out his grounds of appeal in his affirmation filed on the same day.  They are that:

(1)   The Judge was wrong in law in holding there was no state acquiescence or involvement.

(2)   The Judge failed to provide detailed reason for his decision.   

12.  The exhibit to the affirmation set out in details the applicant’s account of events in respect of his claim, the content of which is substantially the same as that of the affirmation filed in support of the Form 86.  In addition, the applicant advanced the following new complaints against the Board’s decision:

(1)   The Board misdirected itself on the law by considering that the applicant must have experienced torture in order to establish substantial grounds for believing that there was a risk of torture in the future.

(2)   The Board based its conclusion on COI as updated as 2013 to 2015, without establishing that they remain valid up to 2018. There was insufficient inquiry into the COI and a failure to take into account three specific COI mentioned by the applicant, namely: (i) USHR 2010; (ii) USRF 2010; and (iii) Report on ICJ Mission to Bangladesh.  Had the Board considered these references, it ought to have decided the appeal in the applicant’s favour.

(3)   It was procedurally unfair that the applicant was not provided with legal representation in the appeal before the Board.

13.  The first ground of appeal is clearly misplaced.  The Judge has not referred to, let alone made any holding on, state acquiescence.

14.  As to the second ground of appeal, the Judge had given succinct and adequate reasons for rejecting the grounds for judicial review advanced by the applicant.  Although the applicant’s grounds for judicial review appear to be many, they are, as the Judge correctly pointed out, lacking in particulars and details, and have no substance.  Some of them simply bear no apparent relevance to the applicant’s case. 

15.  As to the new complaints against the Board’s decision, it is trite that the Court of Appeal will not generally entertain new arguments that are fact-and-evidence sensitive and have not been canvassed at the lower courts and for which leave has not been sought within time: see Re 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]. See also Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 as applied in Ubamaka v Secretary for Security [2013] 2 HKC 75 at [185] and [186].  In this case, the applicant has not given any explanation as to why these additional grounds were not included in the grounds for judicial review.  We will not permit the applicant to advance these new grounds and arguments in this appeal.

16.  In any event, the new complaints have no merit.  Firstly, the Board did not accept that there were real risks of the applicant being subjected to harm, torture or ill-treatment because it did not accept the applicant was a genuine non-refoulement claimant, and did not believe his account of the events surrounding his claim.  Whether the applicant had previously experienced torture is therefore irrelevant. 

17.  Secondly, as the Board’s decision was not premised on its consideration of the COI, the complaint about the Board’s approach to and consideration of COI bears no relationship to the case. 

18.  Thirdly, with regard to the complaint of no legal representation in the appeal before the Board, this Court had consistently held that the principle of high standard of fairness did not prescribe that a non-refoulement claimant has an absolute right to free legal representation at all stages of his claim.  Apart from a bare assertion of unfairness, the applicant has not identified any real prejudice arising from the fact that he was not legally represented in the appeal before the Board.  

19.  For the reasons set out above, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.