RE ISLAM MOHAMMAD TAJOL

CACV 464/2018

[2019] HKCA 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 464 OF 2018

(ON APPEAL FROM HCAL 52/2018)

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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 given on 7 September 2018 refusing leave 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 dated 5 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 19 May 2016 and 28 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 16 June 2014 illegally and was arrested by the police on 19 June 2014.  He lodged a non-refoulement claim on 22 June 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 19 May 2016 (“the Director’s First Decision”), 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].

5.  By a Notice of Further Decision dated 28 July 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 31 October 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 5 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [34] of the Board’s Decision, the Board doubted the credibility of the applicant. The Board was also satisfied at [50] that state protection would be available for the applicant.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 10 January 2018 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 10 January 2018, the applicant advanced various grounds for judicial review which are summarised below:

(i)   lack of legal representation in his appeal before the Board;

(ii)   lack of language assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly;

(iii)   lack of fair hearing on the part of the Director in failing to provide him a further screening interview for his claim under BOR 2 risk before making his further decision to reject his claim; and

(iv)   wrongful exercise of case management power on the part of both the Director and the adjudicator for putting little or no weight on his claim of being remanded in Bhola jail for 29 days during which he was interrogated by officers or on his supporting documents and hence there is no proper basis for finding his claim as unreliable.  

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

“13. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15. As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

16. Regarding his complaint under ground (3) of not being provided a further screening interview for his claim under BOR 2 risk, even assuming that he either did not indeed receive the earlier letter from the Immigration Department inviting him to submit additional facts relevant to his claim under BOR 2 risk, or that he was indeed for whatever reason unable to do so within the time stipulated, he did not raise any issue with it at his subsequent oral hearing more than three months later before the Board nor request for further time or assistance to submit any such additional facts that he might have available regarding BOR 2 risk. In fact even now in this leave application including an oral hearing before me that he did not submit any additional facts or make any further representation relevant to his claim under BOR 2 risk. In the absence of any further response from the applicant, the Director was entitled to assess his claim relevant to BOR 2 risk on his presentation and evidence available and I do not find anything amiss in no further screening interview being provided to the applicant in the circumstances.

17. As for his complaint in ground (4) against the Director and the adjudicator of not putting any or sufficient weight in his claim of being remanded in Bhola jail for 29 days during which he was interrogated, in fact both the Director in paragraphs 20 – 21 of his decision and the adjudicator in paragraphs 64 – 74 of his decision did properly consider and assess such claim of the applicant on all the evidence available to them, of which they as primary decision makers were entitled to evaluate before making their findings and conclusion in their respective decision, and I do not find any merit or basis in this complaint of the applicant.

18. In the premises and having proceeded to consider 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.

19.   For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

11.  In the Notice of Appeal dated 19 September 2018 the applicant advanced the following grounds of appeal:

“… the Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

12.  The applicant failed to comply with the direction made by this court on 9 November 2018 requiring him to lodge skeleton submissions by 31 December 2018, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  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.

14.  The hearing date on 30 January 2019 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

15.  All of the grounds stated in the Notice of Appeal are concerned with alleged errors on the part of the Board.  They do not identify any error in the judge’s decision, and are thus not viable grounds of appeal. 

16.  As this court has stated on many occasions, an appeal to the Court of Appeal is against the decision of the judge in the court below, and it is incumbent on the applicant to point to errors in that judgment of which complaint is made. Further, as we have also repeatedly stated, an application for leave to bring judicial review proceedings is not simply a further avenue of appeal against the decisions of the Director and the Board, or the findings made by them.  It is necessary to identify legal or procedural errors on their part which would entitle the court to intervene.  In this case, the applicant identified four alleged errors in his affirmation filed in support of his application seeking leave for judicial review.  Each of these was dealt with by the judge in the CALL-1 Form, and we can see no error in the way in which they were dealt with.

17.  Moreover, the complaint regarding reliance by the Board on unofficial or non-credible source information is not one which was made before the judge, and is thus not open to the applicant on appeal.

18.  As for the complaint that the Board relied on “some cases which are outdated”, this too was not a complaint made before the judge, and it is in any event wholly lacking in particulars or detail, and is not a matter that assists the applicant.

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