RE REDAY KRITTNIA

CACV 164/2018

[2018] HKCA 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 164 OF 2018

(ON APPEAL FROM HCAL NO. 892 of 2017)

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J U D G M E N T

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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 4 May 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 6 November 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 20 May 2016 and 4 July 2017 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 7 September 2018.  The applicant was directed to lodge a skeleton argument not less than 28 days before the hearing and also warned that should he fail 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 dealt with on paper.  The direction and the warning was communicated to the applicant in two letters from the Court dated 6 June 2018 and 25 July 2018.

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by 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.  In the present case, as the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

4.  The applicant is a Bangladeshi national.  On 20 April 2012, he departed Bangladesh for mainland China.  He later entered Hong Kong illegally and was arrested by the police on 1 June 2012.    

5.  On 3 June 2012, the applicant lodged a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  On 21 September 2012, the Director rejected his torture claim.  His petition against the refusal of the torture claim was dismissed by the Board on 28 December 2012. 

6.  On 5 March 2013, the applicant lodged a non-refoulment protection claim on the ground of cruel, inhuman or degrading treatment or punishment based on his fear that, if refouled to Bangladesh, he would be harmed or killed by five Muslim men because he is a Hindu minority and had refused to pay protection money to them.   

7.  The basis of the applicant’s claim and his evidence before the Board were set out in details in [10] to [33] of the Board’s decision, and summarised by the Judge in [2] to [4] of the Form CALL-1 dated 4 May 2018, [2018] HKCFI 932 as follows:

“2. The applicant was born and raised in Shingher Nandan Village, Munshigonj District, Bangladesh to a Hindu family where his father and one of his brothers still live, and where conflicts between Hindu and Muslim were common. After leaving school he assisted in his father’s pharmacy shop in the village. One day in April 2012 five Muslim men came to his father’s pharmacy to demand 500,000 taka as protection money, and when his father refused, they slapped him on the face and threatened to kill the applicant who managed to flee from the scene but the men then started to vandalize the shop before they left. Afterwards the applicant’s father reported the matter to the police but to no avail as the police were not willing to launch any investigation.

3. On the following day the applicant ran into the same five Muslim men on the street who threatened him again that they would kill him if his father still refused to pay them protection money. The next day the five Muslim men came to the applicant’s home looking for him but the applicant managed to run away from the back of his house, and the men warned his family that when they find him they would kill him.

4. As a result the applicant’s family advised him to leave Bangladesh for his own safety and so the applicant was arranged by agents to depart Bangladesh on 20 April 2012 for China, and from there he sneaked into Hong Kong on 18 May 2012 where he was later arrested by the police and lodged his non-refoulement claim, and subsequently also disclosed that after he left Bangladesh and as the five Muslim men were unable to locate him, they kidnapped his younger brother for ransom, but when his father still refused to pay them, they released his brother unharmed.”

8.  By a Notice of Decision dated 20 May 2016, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1] and the persecution risk[2]. 

9.  On 30 May 2016, the applicant lodged an appeal to the Board against the Director’s decision.

10.  By letter dated 14 June 2017, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk[3].  Not having received a response from the applicant, the Director proceeded to consider the applicant’s claim on the ground of BOR 2 risk based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 4 July 2017, the Director decided against the applicant.

11.  The Board heard the applicant’s appeal on 6 and 20 October 2017. The applicant gave evidence with the assistance of an interpreter.  He told the Board that he had a further concern for his safety because he heard from his friends that the Rohingya Muslim refugees who fled to Bangladesh had joined force with the local Muslims to persecute the Hindus.  He also told the Board that his family had relocated to India.  

12.  By its decision dated 6 November 2017, the Board dismissed the appeal.  For the reasons given in [54], the Board considered the risk of the applicant being subject to harm or ill-treatment was low and there was no substantial ground for believing that he would be subject to harm or ill-treatment. Based on the country of origin information (“COI”) set out in [54], the Board found there was reasonable state protection in Bangladesh.  The Board was further of the view that internal relocation alternatives were available.  The Board concluded that the applicant failed to establish his claim under either of the BOR 2, BOR 3 or persecution risks ground.

13.  The applicant filed his Form 86 on 16 November 2017 seeking leave to apply for judicial review against the Board’s decision.  The applicant’s supporting affirmation filed on the same day advanced the following grounds in support of the relief claimed:

(1)   The Director and the Board failed to conduct proper and analytical inquiry into COI or were being selective in their reliance of COI in their assessment of his claim.

(2)   They failed to give proper consideration to the persecution of Hindu in Bangladesh in their assessment of his claim.

(3)   They failed to give proper consideration to the fact that Hindus lived in fear and the issue of effectiveness of police protection to Hindus in Bangladesh before deciding that it would be safe for him to return home.

(4)   There was error and misdirection in law in their assessment that state or police protection would be available to him upon his return to Bangladesh. 

14.  As requested by the applicant, an oral hearing was held to hear the leave application.  On 4 May 2018, the Judge refused to give leave and set out his reasons in [11] to [15] of the Form CALL-1:

“11. It seems to me that all these grounds relate to the reliance by the Director and the Board on COI in their assessment of the applicant’s claim but which are all just broad and vague statements without any particulars or specifics form the applicant as to how and where they were in error or being selective or failed to make proper inquiry into those information, as it has been clearly held by the Court of Appeal that high standard of fairness does not entitle a claimant to just make the claim and then simply sit back and require the Director or the Board, and in this case for the Court to prove it: see CH v Director of Immigration [2011] 3 HKLRD 101 at para 47.

12. Furthermore, having examined those COI listed and referred to by both the Director and the Board, I am unable to find anything amiss arising from their reliance on such COI in their consideration of the applicant’s claim, and on the facts of the case both the Director and the Board were entitled in my judgment to arrive at their assessment of low risk of harm to the applicant from those five Muslim men who were only after protection money from his father but that no harm has happened to him since the applicant’s departure from Bangladesh, and that they were therefore entitled to question the applicant’s real reason for leaving Bangladesh in the circumstances. There is therefore no merit in any of these grounds of the applicant.

13. As correctly found by both the Director and the Board, the applicant’s claim is premised on being threatened by five men for protection money which has nothing to do with race or religions or any conflicts between Hindus and Muslims in general in Bangladesh, hence there is also no basis in grounds (2) – (4) of the applicant either.

14. 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 standard of fairness in their consideration and assessment of the applicant’s claim.

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

15.  In the Notice of Appeal dated 17 May 2018, the applicant stated that:

(1)   The Board and the Director failed to have due regard to the mental distress and mental danger posed by his assailants who wanted a ransom, the fact that he was a minority Hindu, and the previous attack on him during the confrontation.

(2)   The Judge had accepted that Hindu minority like him would be in danger in Bangladesh.

(3)   There was a failure to properly consider the condition in Bangladesh, which was full of violence and chaos.

16.  The thrust of the applicant’s grounds of appeal is directed at the Board’s and the Director’s assessment of the likelihood and risk of the applicant being subjected to harm or ill-treatment if refouled to Bangladesh.  This Court has repeatedly emphasised that judicial review does not operate as a rehearing of a non-refoulement claim.  Assessment of the merits of the applicant’s claim is a matter for the Director and the Board, who are the primary decision-makers.  In judicial review, the Court exercises a supervisory jurisdiction and is concerned with reviewing the legality and rationality of the decision under challenge and the propriety of the process by which the decision is arrived.  The Court will not assume the role of the Director and the Board as the primary decision makers to re-assess the merits of the applicant’s claim. 

17.  The applicant’s grounds of appeal are therefore misplaced and provide no basis for us to interfere with the Judge’s decision.  

18.  We would further point out that the applicant was mistaken when he stated that the Judge had accepted that the Hindu minority in Bangladesh would be in danger.  In [2] to [4] of the Form CALL-1, the Judge was only summarising the basis of the applicant’s claim. 

19.  There is no merit in the applicant’s appeal. Accordingly, we dismiss the appeal.