RE HOSSAIN MONIR

CACV 316/2018

[2018] HKCA 807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 316 OF 2018

(ON APPEAL FROM HCAL NO. 846 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 13 July 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 26 October 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 28 April 2016 and 28 June 2017 rejecting his non-refoulement claim.  The applicant consented to the appeal being dealt with by a two-judge court.  

2.  The appeal was listed to be heard on 6 November 2018.  The applicant was directed by the Court to lodge his skeleton argument by 12 October 2018, and was further warned that should he fail to do so, he shall be deemed to waive his right to an oral hearing, in which case the hearing date would be vacated and the appeal processed on paper.  The direction and the warning were communicated to the applicant by the Notice of Hearing dated 28 September 2018.  

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 entered Hong Kong illegally and was arrested by the police on 15 August 2013.  He raised a non-refoulement claim on 23 August 2013 based on his fear of being harmed or killed by supporters of Awami League (“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 [5] of the Form CALL-1 dated 13 July 2018, [2018] HKCFI 1454.  In brief, the applicant was a member of the Bangladesh Nationalist Party (“BNP”) and had been active in attending meetings, rallies and distributing posters for the party. He and several BNP members were attacked by a group of 15 AL supporters in 2000, as a result of which he was badly injured and was hospitalised for two weeks.  In the following year, during a march organised by BNP, the applicant and BNP members were again attacked by AL supporters.  Thereafter, the applicant kept on receiving death threats from AL supporters by telephone.  In mid-2012, fearing for his safety, the applicant left for mainland China, from where he sneaked into Hong Kong.    

7.  By a Notice of Decision dated 28 April 2016 and a Notice of Further Decision dated 28 June 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds while the further decision assessed the BOR 2 risk[4] ground.      

8.  The applicant appealed the Director’s decisions to the Board, which heard the appeal on 22 September 2017.  The applicant elected to give evidence and had answered questions from the Board.    

9.  By a decision dated 26 October 2017, the Board dismissed the appeal. For the reasons given in [9] to [18] of the decision, the Board was of the view that it could not rely on the applicant’s account, which was unreliable and lacking in credence.  For the sake of completeness, the Board also went on to assess the claim, assuming it was true, under the applicable grounds, and concluded that the applicant had failed to make out a case on any of the applicable grounds. 

10.  On 6 November 2017, the applicant filed a Form 86 together with a supporting affirmation seeking leave to apply for judicial review against the decision of the Board.  Both in the Form 86 and the affirmation, the applicant stated that he had real risk of being harmed and killed by the AL supporters, and that he had been attacked twice and was hospitalised as a result of the injuries received.  He also asked to be allowed to remain in Hong Kong until his problem was over.

11.  The Judge refused to give leave to apply for judicial review, being of the view that the intended judicial review had no prospect of success.  He gave his reasons at [12] and [13] of the Form CALL-1 as follows:

“12. Clearly these are not reasons or grounds for judicial review as the applicant did not even say that the Board had erred in its decision or that there had been procedural unfairness in the process of determining his claim or hearing his appeal. As noted by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decisions of the Director or the adjudicator in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the Director or the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

13. Nevertheless, 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.”

12.  In the Notice of Appeal dated 16 July 2018, the applicant stated, by way of ground of appeal, that he could not go back to his country at this moment because his life was not safe and asked to be allowed to stay in Hong Kong until his problem was solved. 

13.  What was stated by the applicant does not amount to proper grounds of appeal.  He has not identified any error in the Judge’s decision and reasons.  There is no basis for this Court to disturb the Judge’s decision. 

14.  There is no merit in the appeal.  Accordingly, we dismiss the appeal.