RE MD ABDUL MATIN

CACV 324/2024, [2025] HKCA 26

On appeal from [2024] HKCFI 1871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 324 OF 2024

(ON APPEAL FROM HCAL 1696 OF 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 KW Lung (“the Judge”)  given on 25 July 2024 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 (“the Board”)  dated 31 May 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 12 April 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 5 June 2014, and was arrested by the police on the same day.  Thereafter, he lodged a non-refoulement claim by way of a written representation dated 8 June 2014.

3.  The applicant’s claim was based on a fear of being harmed or killed by his cousins due to political conflict and/or disagreement.  The details of the applicant’s claim have been summarised by the Judge at [3] to [7] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 12 April 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 18 April 2019.  The Board found, inter alia, that the applicant was only a “grass-root level supporter” of the Bangladesh Nationalist Party (“BNP”)  (an opposition political party to the Awami League, of which his cousins were members)  and that nothing untoward happened to the applicant at the hands of his cousins before October 2013, save “intermittent verbal threats” (see Board’s Decision at [62]-[63]).  While the Board did accept that the cousins had on one occasion assaulted the applicant, the risk of harm was low, as this was the only occasion of physical harm suffered by the applicant throughout 20 years of the applicant’s membership with the BNP (see Board’s Decision at [66]-[68]). Accordingly, the applicant’s appeal was dismissed by the Board’s Decision.

The Judge’s decision

6.  The applicant filed a Form 86 on 20 June 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In his supporting affirmation filed on the same day, the applicant complained that he was only given the bundles for the hearing before the Board 8 days before the hearing date, and that due to his lack of proficiency in English, he could not understand the contents of the documents therein.   

7.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [18] to [26] of the CALL-1 Form:  

“18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he understood the Board’s Decision; that there was an interpreter and he was free to express himself before the Board. He further said that he did not say that the Board was wrong, but he wanted the Court to review his case.

20. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1)  …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.’

21. For the reasons given above, the Board refused to accept the facts in support of the applicant’s claim.

22. From the Board’s Decision, the applicant did not raise his complaints that he did not understand the hearing bundle or the interpreter did not understand him. His complaints in his affirmation are inconsistent with what he said before me.

23. The applicant is unable to raise any valid ground to challenge the Board’s Decision.

24. There is no reason that the Court should interfere with the Board’s finding of the facts.

25. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

26.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 7 August 2024, the applicant merely stated that he “[wants] to appeal”.  

9.  In breach of the directions made by the Registrar of Civil Appeals on 26 September 2024, the applicant failed to lodge skeleton submissions with the court not less than 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.

10.  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.

11.  The hearing date on 5 December 2024 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

12.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

13.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  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, and Re Masoom Parvez [2018] HKCA 163.

14.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has failed to do so.

15.  The applicant’s complaint of prejudice before the Board by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

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