Re Alom

CACV 5/2021

[2021] HKCA 1423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 5 OF 2021

(ON APPEAL FROM HCAL NO 2358 OF 2018)

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Before: Hon Au and Chow JJA in Court

Date of Judgment: 27 September 2021

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge CP Pang (“the Deputy Judge”) set out in the Form CALL-1 dated 23 December 2020, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 3080.

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 10 October 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 12 September 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.The appeal was listed to be heard on 10 August 2021 and the applicant consented to have it heard by two judges. The applicant was directed to lodge two sets of skeleton argument by 13 July 2021 and was warned that if he failed 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 determined on paper. The direction and the warning were communicated to the applicant by the Notice of Hearing dated 23 June 2021.

4.The requirement for lodging skeleton argument in an appeal is set out in 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 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.

5.As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.

Background

6.The applicant is a national of Bangladesh. He entered Hong Kong as a visitor on 8 January 2014 but subsequently overstayed. He was arrested on 20 January 2014. On 22 January 2014, he lodged a non-refoulement claim.

7.The details of the applicant’s claim and his personal background were set out at paragraph 6 of the Director’s Decision and paragraph 35 of the Board’s Decision.

8.Briefly stated, the applicant claimed that he would be harmed or killed by two groups of persons, namely, Babu from Awami League (“AL”), and some other AL members, as well as his wife and her brothers if refouled. The applicant claimed to be the general secretary of Jamaat-e-Islami Party (“JIP”), the political rival of AL. In 2008, AL took power. The applicant heard that some of the JIP senior members were prosecuted. In 2011, the applicant was attacked and injured by Babu and his subordinates because the applicant refused to comply with Babu’s extortion. Out of fear, the applicant fled to Hong Kong for protection. While he was in Hong Kong, his wife discovered that he had a girlfriend and thus threatened to kill him if he went back. The applicant felt fearful as his wife and her brothers were connected to AL.

The Director’s Decision and the Board’s Decision

9.In the Director’s Decision, the Director assessed the grounds on torture risk^[1], BOR 3 risk^[2], persecution risk^[3] and BOR 2 risk^[4]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

10.The applicant appealed the Director’s Decision to the Board. On 26 June 2018, the Board conducted an oral hearing, during which the applicant answered the Board’s inquires. After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection and dismissed his appeal against the Director’s Decision.

11.The Board found that the applicant was not a credible witness. It identified several inconsistences in material aspects of his claims (paragraphs 37 - 39 of the Board’s Decision). The Board further found that state protection was available to the applicant (paragraphs 44 - 51 of the Board’s Decision). Further, internal relocation was also an option (paragraphs 77 - 82 of the Board’s Decision). As a result, the Board dismissed his appeal.

The Deputy Judge’s Decision

12.The applicant filed a Form 86 on 26 October 2018 seeking leave to apply for judicial review against the Board’s Decision. He did not advance any grounds of review nor did he request an oral hearing. After considering the documents, the Deputy Judge held that the intended judicial review had no reasonably arguable grounds, and refused to grant leave. He set out his reasons in [13] - [24] of the Deputy Judge’s Decision:

“13. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

14. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

15. In the present case, the Board rejected the applicant’s account of primary facts based on the major inconsistencies and contradictions in his evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

16. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

17. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

18. The applicant stated no grounds of the judicial review in Form 86 and his affirmation in support.

19. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

20. The Board, with the benefits of hearing the applicant’s oral evidence for two days, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility with detailed reasons set out in its decision. I do not find any reasonably arguable basis to challenge the findings of the Board.

21. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

22. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

23. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

24. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

Grounds for appeal

14.The applicant filed the Notice of Appeal on 6 January 2021 to appeal the Deputy Judge’s Decision. He complained that the Deputy Judge wrongly upheld the Board’s Decision as the Board was wrong in concluding that he was not a credible witness. He further stated that the Deputy Judge did not entertain his complaint to the authorities that there was lack of clarity and transparency in the bundles.

Discussion

15.The relevant legal principles governing an appeal in non-refoulement cases are set out at paragraph 14 of Nupur Mst v Director of Immigration [2018] HKCA 524.

16.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

17.In light of the above, it is thus incumbent on the applicant to point out the errors in the Deputy Judge’s Decision with sufficient particulars and specifics.

18.However, in this appeal, the applicant did not identify any errors committed by the Deputy Judge. As earlier mentioned, the applicant did not advance any grounds of review before the Deputy Judge. The grounds in his Notice of Appeal are therefore new which this Court would not generally entertain: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)]. Further, it is also misconceived to argue that the Deputy Judge erred in dismissing his complaint about the hearing bundles as this was not advanced and hence not dealt with by the Deputy Judge in the Deputy Judge’s Decision.

19.In any event, we have reviewed the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions. We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions. There is no basis to disturb the Deputy Judge’s Decision.

Disposition

20.For the reasons given above, the applicant’s appeal has no merits. Accordingly, we dismiss the appeal.

The applicant acting in person