Re Tutul
Read the full judgment text of CACV 205/2018 on BabelCite. This Court of Appeal judgment was delivered on 27 August 2018 before Lam VP, Kwan JA, Barma JA.
Civil appeal – judicial review – non-refoulement claim – torture claim – appeal against refusal of leave to apply for judicial review – Bangladeshi national – alleged threats and beatings by private individual named Kalam demanding money – whether state acquiescence or involvement made out – whether judge gave adequate reasons – Bangladeshi national with long history of overstaying and multiple entries to Hong Kong – claim assessed as non-refoulement claim by Director – Director rejected BOR 3, persecution, torture and BOR 2 risks – Torture Claims Appeal Board dismissed appeal on credibility and lack of substantial risk – viability of internal relocation – enhanced Wednesbury standard – scope of appeal from refusal of leave – role of Court in judicial review not to provide further avenue of appeal – assessment of evidence and COI primarily within province of Board – Court will not intervene absent errors of law, procedural unfairness or irrationality – appellant must demonstrate judge made errors of law or was plainly wrong – fresh evidence on appeal must satisfy Ladd v Marshall – new arguments not canvassed below generally not entertained – Practice Direction 4.1 – non-compliance with unless order to lodge skeleton submissions treated as abandonment of right to oral hearing – appeal processed on paper – whether fresh COI materials (dated 2010 and 2011) should be admitted – applicant failed to show they were placed before Board – no exceptional circumstances – new ground attacking Board's use of COI adds nothing – appeal dismissed.
Legal issues: Whether the judge erred in law in holding that there was no state acquiescence or involvement · Whether the judge failed to provide detailed reasons for refusing leave · Whether fresh COI materials should be admitted on appeal
Outcome: Appeal dismissed.
Cited by 13 cases · Cites 16 cases
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CACV 205/2018 [2018] HKCA 552 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 205 OF 2018 (ON APPEAL FROM HCAL NO 522/2017) __________________________
__________________________ Before: Hon Lam VP, Kwan and Barma JJA in Court Date of Judgment: 27 August 2018 ________________ JUDGMENT ________________ Hon Lam VP (giving the Judgment of the Court): 1.This is an appeal against the decision of Deputy High Court Judge Woodcock on 24 May 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Bangladesh. He first entered Hong Kong in December 2000 as a visitor. He overstayed and was arrested in July 2002. He was removed from Hong Kong in September 2002. The applicant then used a passport in another name and left Bangladesh in January 2004 and travelled between China and Hong Kong on many occasions before returning to Bangladesh in June for a month. He left again in July for China. He then travelled between China and Hong Kong on several occasions. The applicant last arrived in Hong Kong on 5 September 2004. He surrendered to the Immigration Department on 3 January 2012 having overstayed for over seven years from 7 September 2004. On 3 January 2012 he lodged a torture claim. It was processed as a non-refoulement claim. 2.His claim is based on alleged threat from a man identified as Kalam. In 2003, Kalam accused the applicant of killing Kalam’s cousin. Kalam demanded money and beat the applicant until the applicant was unconscious. Kalam kept making demands for money and threatened to kill the applicant. The applicant allegedly left Bangladesh to flee from Kalam. 3.The Director decided against the claims on 18 January 2016. The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s Decision”). By a Further Decision of 21 November 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant. 4.The applicant appealed to the Torture Claims Appeal Board. After a hearing held on 24 November 2016, the Board dismissed the appeal on 11 August 2017 (“the Board’s Decision”). 5.The intended judicial review was in respect of the Board’s Decision only. The Form 86 filed by the applicant on 16 August 2017 did not contain any ground for judicial review. 6.In his affirmation dated 16 August 2017, the applicant gave the following grounds for judicial review:
7.The judge heard the applicant on 9 January 2018. She reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [13] to [20] of the CALL-1 Form of 24 May 2018:
8.In the notice of appeal of 6 June 2018 and the affirmation of the same date, the applicant stated the following as his grounds of appeal:
9.In a document called Exhibit A attached to the affirmation of 6 June 2018, he repeated the 8 grounds of review set out in his affirmation dated 16 August 2017 placed before the judge. He added a new ground (ground 1) at p.19 of Exhibit A that the Board misdirected itself on the law when assessing the risk of torture in the future. 10.The applicant did not comply with the unless order made on 12 July 2018 that he should lodge skeleton argument on or before 31 July 2018. No skeleton argument was lodged despite the Court’s direction that the applicant would be treated as waiving his right to an oral hearing if he did not lodge skeleton submissions in accordance with those directions and the Court would then process the appeal on paper. 11.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 by the judges and the litigants. The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge at an appeal, including the effective management of the oral hearing. This Court will not permit unfocused oral presentation of material at an oral hearing. In view of the heavy demand on court’s time due to 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. 12.The hearing date of 14 August 2018 was vacated when the applicant failed to lodge skeleton submissions by 31 July 2018. 13.The Court processed the appeal on the basis of the materials already lodged by the applicant. 14.Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations. 15.Before we address the grounds of appeal, it is necessary to highlight the following propositions:
16.In the present case, the Board rejected the applicant’s claim primarily on credibility and lack of substantial risk of harm. The Board also found that internal relocation was viable. The judge, after rigorous scrutiny, found no reasonably arguable basis to challenge those findings. 17.The appeal must be considered in the above context. 18.The grounds of appeal of the applicant in the affirmation of 6 June 2018 are obviously without merit. The judge did not refer to the concept of state acquiescence or involvement at all as the applicant did not advance any ground before her based on that concept. Though there was reference to state protection (which is not the same as the concept of passive state acquiescence) in Ground 4 advanced before the judge, she had already adequately addressed it at [15] of the CALL-1 form. 19.The judge did give reasons for her decision as set out in the CALL-1 form. 20.As we have said above, the regurgitation in Exhibit A of the grounds advanced and already considered and rejected by the judge cannot take the applicant further in this appeal. The applicant failed to demonstrate any error on the part of the judge in rejecting these grounds. 21.The applicant provided particulars of COIs which he alleged the Board failed to consider in Exhibit A which were not placed before the judge. He did not make any application for admission for fresh evidence and he has not provided any reasons why he did not give these particulars in the Court below. We are also not told if those COIs were placed before the Board. In any event, the COIs he now referred to are dated 2010 and 2011 which appear to be older than the COIs relied upon by the Board. The applicant did not satisfy the test in Ladd v Marshall, supra and we do not see any exceptional circumstances in the present instance to permit such fresh materials to be relied upon. 22.His further statements on procedural unfairness at p.21-22 of Exhibit A also take his case no further. It was inaccurate for him to assert that there was no assessment of BOR 2 risk by the Director. This flies in the face of the Further Decision of 21 November 2016, alluded to at [11] of the Board’s Decision. 23.The new ground 1 at p.19 of Exhibit A is in substance an attack on the Board’s use of COI. It adds nothing to the other grounds which the judge had adequately addressed. 24.For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.
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