Re Miah Mohammad Shamim

CACV 386/2018

[2019] HKCA 84

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 386 OF 2018

(ON APPEAL FROM HCAL NO. 226 of 2017)

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Before: Hon Kwan, Chu and Barma JJA in Court

Date of Judgment: 28 January 2019

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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 Campbell-Moffat J (“the Judge”) given on 10 August 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 15 May 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 January 2016 rejecting his non-refoulement claim.  

2.The appeal was set down for hearing on 17 January 2019. The applicant was directed by the Court to lodge with the Court his skeleton argument on or before 20 December 2018, and further warned that if he failed to lodge skeleton argument as directed, he shall be deemed to have waived his right to an oral hearing and elect to have his appeal disposed of on paper, in which case the hearing date shall be vacated and the Court shall proceed to consider the appeal on paper.  The direction and warning were communicated to the applicant in the Notice of Hearing dated 4 December 2018.    

3.The requirement to lodge 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 argument 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 failed to comply with the directions to lodge skeleton written argument.  Consequently, the hearing date was vacated, and we have proceeded to deal with this appeal on paper based on the available materials before us.   

5.The applicant is a Bangladeshi national who entered Hong Kong illegally.  On 26 February 2014, he was arrested by the police.  On 1 March 2014, he raised a non-refoulement claim on the basis that if he were refouled to Bangladesh he would be harmed or killed by (i) members of the Awami League (“AL”) and the Bangladesh Chhatra League (“BCL”), which was a student wing of AL, because of his affiliation with the Bangladesh Nationalist Party (“BNP”), (ii) his neighbour arising out of a land dispute, and (iii) his creditor because he failed to repay his loan.  He also feared consequences arising from false accusations of murder or terrorist activities made against him by his political enemies. 

6.The basis of the applicant’s claim had been set out in details in the Director’s decision at [6] and in the Board’s decision at [22] to [39], and summarised by the Judge at [5] to [7] of the Form CALL-1 dated 10 August 2018, [2018] HKCFI 1723 as follows:

“5. In around 2009, the Applicant joined the student wing of the Bangladesh Nationalist Party (“BNP”), which was in conflict with the student wing of the Awami League (“AL”). In 2010, the Applicant had become the General Secretary of the student wing and in 2011, he became the General President. During this period of time the conflict between the two student bodies led to the Applicant being punched, kicked and beaten with a stick on several occasions. One such occasion resulted in a fractured arm for which the Applicant received herbal treatment, but did not attend a hospital and did not report the incident to the police. In 2012, the Applicant received death threats from members of AL and was falsely investigated for the murder of a member of the AL but nothing came of it, although the Applicant suggests that an arrest warrant was issued. At a later protest rally against the government in 2012, the Applicant was shot in the thigh by the local police. The Applicant made a complaint to the local police but was threatened with allegations of being a terrorist and therefore did not pursue the matter.

6. Meanwhile, in 2011, there had also been a land dispute between the Applicant’s family and a neighbour “S”. This was at a time when the Applicant’s father was still alive and the head of the family. A settlement meeting ended with someone hitting S with an axe, which resulted in a serious head wound and hospitalisation. The Applicant was implicated in the assault (although he did not wield the axe) and, as a result, he fled for two months. No police action has actually been taken against him for this and the Applicant returned to his home thereafter but clearly there is still bad blood between the parties. His father had since passed away but his mother still lives in the family home.

7. Also in 2011, at the age of 21, the Applicant maintains that he borrowed money from a friend “M”. This was to invest in his business which failed and therefore he could not repay the loan. M demanded repayment but did not inflict any harm upon the Applicant whilst he was in Bangladesh. Since being in Hong Kong, the Applicant maintains that M has threatened to kill him.”

7.By his decision dated 21 January 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3].     

8.The Board heard the applicant’s appeal against the Director’s decision on 17 November 2016.  The applicant elected to give evidence.  By its decision dated 15 May 2017, the Board dismissed the appeal.  The Board accepted that the applicant had been involved in the land dispute with his neighbour, had defaulted in repaying his debt, and false accusation of murder had been made against him and he had been ill-treated.  The Board, however, was not satisfied that there was sufficient basis for affording non-refoulement protection under the torture risk, BOR 3 risk and persecution risk grounds.  The Board’s detailed analysis appeared at [41] to [98] of its decision.        

9.The applicant filed a Form 86 together with a supporting affirmation on 23 May 2017 to seek leave to apply for judicial review against the decision of the Board.  An oral hearing was scheduled which was adjourned to 19 July 2018 as the applicant was appealing against the Director of Legal Aid’s refusal to grant legal aid.  The Judge summarised the applicant’s grounds for applying for judicial review and gave her reasons for rejecting them at [15] to [18] of the Form CALL-1 as follows:

“15. The grounds of review can be encapsulated as follows:

(i) It is submitted that the Adjudicator acted unreasonably in that he:

a. failed to consider relevant and COI research, which had been relied upon by the Director. Having failed to consider it, it follows that he failed to place any weight upon it; and

b. alternatively, the Adjudicator cherry picked the COI which he did take into account, rejecting relevant COI and accepting irrelevant COI and such COI was not up to date.

(ii) It is submitted that the Adjudicator acted with procedural impropriety and unfairly in that;

a. The Appeal bundle was provided only a few days before the hearing.

b. The bundle was in English and the Applicant had little time to find an interpreter.

c. The Applicant was confused when in the hearing.

d. The TCAB failed to notify him immediately of the ruling.

e. The materials were out of date.

16. The Applicant had an opportunity to put his case, which has not materially differed from his original claim and to answer questions raised by the Adjudicator, which he was able to do. There is no record within the papers of any complaint being made to the Adjudicator in respect of preparation time; not understanding the procedure to be adopted or that he was given no opportunity to fully advance his case and address any concerns. The decision of the Adjudicator turned upon a number of factors not just the COI information, which he took into account. If the Applicant took issue with the available information, he had every opportunity to supplement it. From submitting his claim form in September 2015 to the TCAB hearing, there was a period of some 13 months in which he could do so. No further material has been submitted to this court to indicate that the available material was inaccurate.

17. Before the Court, the Applicant admitted to using an address for these proceedings, which was not his address. It therefore ill behoves him to suggest that he received his appeal bundle late and was thereby prejudiced. In any event, the Applicant was provided with an opportunity to add to his submissions and did not wish to do so. He asked the court to consider his application on the papers.

Conclusion

18. I have considered the papers, grounds and submissions carefully and given the opportunity to indicate any fresh material and supplement his case orally.  Which he chose not to do. I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable.”

10.The Judge concluded that the intended judicial review was not reasonably arguable and had no realistic prospect of success and refused to give leave to apply for judicial review. 

11.The Notice of Appeal dated 13 August 2018 did not set out the grounds of appeal, and instead referred to the affirmation filed on the same day for the grounds of appeal.  In the affirmation, it was stated that: (1) The Judge was wrong in law in holding there was no state acquiescence; and (2) The Judge failed to provide detailed reason to support her decision. There was an exhibit A to the affirmation, the content of which is almost identical to the affirmation filed in the Court below in support of the application for leave to apply for judicial review.  It sets out nine grounds for judicial review to challenge the Board’s decision.   

12.We are of the view that neither the notice of appeal nor the affirmation filed in this appeal contains any competent grounds of appeal.

13.Firstly, the criticism about the Judge holding there was no state acquiescence is misplaced because the Judge did not make such holding. 

14.Secondly, it is evident from the Form CALL-1 that the Judge had adequately explained here decision (see [9] above). 

15.Thirdly, the exhibit A to the affirmation merely contains criticisms of the Board’s decision but has not identified any error in the decision and reasons given by the Judge.  The Judge had considered the Board’s decision and the applicant’s grounds for the intended judicial review, and concluded that the grounds were unarguable and the intended judicial review had no prospect of success.  This Court will only interfere with the Judge’s decision if it can be demonstrated that the Judge has erred in her reasons and decision.  Since the applicant has not pointed to any error on the part of the Judge, the appeal simply has no merit and must be dismissed.  We would further observe that some of the contents of the exhibit A to the affirmation bear no relevance to the applicant’s case.  For instance, the arguments pertaining to a BOR 2 risk[4] assessment are irrelevant since the Director’s decision and the Board’s decision did not relate to this ground.     

16.For the reasons above, the appeal is dismissed.

The applicant, unrepresented, acted in person.