Re Moung Khing Rakhing

CACV 75/2018

[2018] HKCA 424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 75 OF 2018

(ON APPEAL FROM HCAL 408/2017)

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Before: Hon Lam VP and McWalters JA in Court

Date of Judgment: 25 July 2018

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

1.This is an appeal against the decision of Deputy High Court Judge Woodcock (“the judge”)on 23 March 2018 refusing leave to the applicant to apply for judicial review.

2.The applicant is a national of Bangladesh who entered Hong Kong illegally on 11 May 2007 and was arrested by the police on 26 May 2008.  On 8 June 2008, he lodged a claim with the Director of Immigration (“the Director”) for non-refoulement protection. 

3.According to the applicant, he was the President of the Rakhing Student Council (“RSC”) in 2006 to 2007. In November or December 2006, he led a group from RSC to protest against the intimidation by members of the Islami Chhatra Shibi (“CS”), the student wing of the Jamaat-e-Islami Bangladesh.  CS was allegedly a group of radical Muslims who oppressed the ethnic minority of Rakhing, including the applicant.  Because of the protest, CS attacked and tortured RSC members.  CS members also destroyed the family house of the applicant and he fled to Hong Kong.

4.The Director rejected the applicant’s non-refoulement claim on 28 October 2015.  This decision covered BOR 3 risk, persecution risk and torture risk but by a Further Decision dated 23 March 2017, the Director also assessed BOR 2 risk in respect of the applicant and also rejected this risk as founding a basis for his non-refoulement claim.

5.The applicant then appealed to the Torture Claims Appeal Board.  After a hearing held on 2 May 2017, the Board dismissed the appeals on 19 May 2017 (“Board Decision”).

6.The Notice of Application for Leave to Apply for Judicial Review (“Form 86”) filed by the applicant on 14 July 2017 sought leave to apply for judicial review in respect of the Board Decision only but did not contain any ground on which relief is sought.

7.In his affirmation dated 14 July 2017, the applicant stated only that it is not safe for him to return to Bangladesh because he is a Buddhist in a Muslim country.  He did not identify any error in the Board Decision.

8.At the hearing of his application for leave to apply for judicial review the applicant did not put forward any grounds for his application other than to express his dissatisfaction with the Board Decision and to advance further claims in respect of the harm to which he would be at risk should he be returned to Bangladesh. 

9.The judge reviewed the materials carefully and noted that the adjudicator had set out the applicant’s evidence and correctly directed himself on the law and the legal principles relevant to each of the bases of the applicant’s claim.  She gave the following reasons for refusing leave at [9] to [11] of the CALL-1 Form of 23 March 2018:

“9. Even though the applicant has not put forward any grounds in his affirmation, I have nonetheless considered with rigourous examination and anxious scrutiny the decision of the adjudicator.

10. I do not find any error of law or evidence of procedural unfairness on his part. I do not find a failure to adhere to a high standard of fairness. The substantive decision was not Wednesbury unreasonable.

11. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

10.In his notice of appeal dated 28 March 2018, the applicant complained that his case had not been well considered and it was not fair for the judge to determine his case when he did not have legal representation.  He asserted that as at the time he had filed his Notice of Appeal he had still not been notified of the outcome of his application for legal aid.

11.In his letter of 10 April 2018 the applicant consented to the appeal being heard by two judges.

12.On 9 May 2018 Lam VP directed that the applicant must lodge his skeleton submission by 19 June 2018, failing which the appeal hearing on 17 July 2018 was to be vacated and the appeal dealt with on the papers.  As the applicant did not comply with this Direction the hearing date was vacated and the applicant’s appeal is now dealt with on the papers.

13.Having considered the applicant’s case in light of the materials before us, we are satisfied that there is no arguable ground of appeal.

14.The sole ground of appeal is that the applicantlacked legal representation at the hearing of his application for leave.  In his Notice of Appeal he claimed that he had applied for legal aid but his application was still pending at the leave hearing with the consequence that the judge decided his leave application before the outcome of his legal aid application was known.

15.The applicant has not filed any document which can establish that he had applied for legal aid for the purpose of his application for leave to apply for judicial review of the Board Decision.  Nor is there anything in the papers to suggest that the applicant applied for an adjournment of his oral hearing so that he could await the outcome of his legal aid application.  However, even if such an application had been made there was no basis for the judge to grant it as there was nothing on the face of the Board Decision to suggest any basis for judicial review of it and no ground for judicial review was set out in the Form 86.

16.Despite the absence of any ground for judicial review, we have ourselves carefully considered the Board Decision.  Like the judge we can detect no error of law or procedural unfairness in the Board Decision.

17.For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.

The applicant acting in person