Re Mannan Miah

CACV 282/2021

[2021] HKCA 1703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2021

(ON APPEAL FROM HCAL 318/2017)

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Before: Hon Barma JA and Lisa Wong J in Court

Date of Judgment: 15 November 2021

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Lok J (“judge”) given on 26 May 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 16 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 25 August 2015 and 28 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He last entered Hong Kong on 9 June 2006 as a visitor and was permitted to remain until 23 June 2006.  He was subsequently arrested by the police on 31 January 2009 for overstaying.  On 4 February 2009, he made a torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”).  The applicant’s CAT Claim was rejected by the Director on 26 July 2012, and he did not appeal against this decision.  However, on 14 March 2014, he raised a non-refoulement claim under the Unified Screening Mechanism.

3.The applicant’s claim was based on his fear of being harmed or killed by members of the Awami League Party because of his involvement in an opposition political party, the Bangladesh Nationalist Party.  The details of the applicant’s claim have been summarised by the judge at [4] and [5] of the judge’s decision[1].

4.The Director decided against the non-refoulement claim on 25 August 2015.  The decision covered the BOR 3 risk^[2] and the persecution risk^[3] (the Director’s decision on the CAT Claim was not re-opened) (“Director’s 1^st Decision”). By a Notice of Further Decision dated 28 April 2017 (“Director’s 2^nd Decision”), the Director rejected the applicant’s claim and found it unsubstantiated under the BOR 2 risk[4].

5.The applicant appealed to the Board.  After a hearing on 29 May 2017, the Board dismissed the appeal on 16 June 2017 (“Board’s Decision”).  The Board’s Decision covered the persecution risk, the BOR 2 risk and the BOR 3 risk for non-refoulement protection.

6.The applicant, although he was present at the hearing before the Board, declined to give oral evidence to the Board or answer its questions.  At [47] to [59] of the Board’s Decision, the Board concluded that the applicant had failed to establish that there is a real chance of him suffering ill-treatment should he be refouled to Bangladesh.

The judge’s decision

7.The Form 86 filed by the applicant on 22 June 2017, which sought to judicially review the Board’s Decision, contained the following grounds for judicial review:

(1)  the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that “they did not satisfy the requirement”;

(2)  the Board/adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  the Board’s decision to dismiss the applicant’s appeal was unreasonable and irrational in the public law sense, or was a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

8.In his affirmation in support of the leave application filed on 22 June 2017, the applicant elaborated on his intended grounds of judicial review.  In gist, he complained that his ability to appropriately and adequately present his case to the Board was hindered by his lack of legal representation and the insufficiency of his English skills. He further contended that the Board had relied on news the source of which was not officially recognised or were hearsay.

9.After summarizing the facts and background of the case and giving due consideration to the Board’s Decision, the judge refused to grant leave for judicial review.  The judge dealt with the applicant’s complaints, and refused to grant leave to apply for judicial review for the reasons stated at [8] to [16] of his decision:

“8. In his supporting affirmation for judicial review, the Applicant complained that as most of the documents in the hearing before the Adjudicator were in English, he was confused as to what actually happened in the hearing. He also alleged that there was insufficient time for him to prepare for the hearing. He answered all the questions honestly in the hearing. Furthermore, he complained that the Adjudicator had erred in relying on: (i) hearsay source of news which is not ‘officially recognized’; (ii) some cases which are ‘fairly outdated considering the dramatic changes’; in making the Decision. According to the Applicant, ‘[the] lack of credible source of information has resulted in them making groundless speculations that it is safe for [him] to return back to my country of origin.’

9. I have great difficulty with the last complaint of the Applicant. Nowhere in the Decision had the Adjudicator referred to any hearsay source of news or ‘outdated’ cases as alleged. I hope that the Applicant was not just copying the grounds for judicial review in other non-refoulement cases.

10. I have carefully considered the detailed written decision of the Adjudicator. In my judgment, the Adjudicator had properly applied the law in reaching the Decision. All the grounds for non-refoulement claims had been properly considered. An oral hearing was held, in which the Applicant was given the opportunity to give oral evidence and submissions. The Adjudicator had carefully and properly considered all such evidence and materials, and the Adjudicator cannot be faulted for reaching the conclusion that the Applicant had failed to establish any of the grounds for non-refoulement claims. The Adjudicator was also entitled to take into account the Applicant’s past behaviour in making the Decision.

11. Though the Applicant was not legally represented in the hearing, the Adjudicator had properly discharged the duty owed to self-represented claimant in the conduct of the hearing. The Applicant indicated that he could understand the Bengali language spoken by the interpreter and that he understood what the Adjudicator had explained. Further, the Adjudicator had properly explained to the Applicant that it was his burden to prove his case and the various issues that might affect his claim. The Applicant was given adequate opportunity to address those issues, and there was simply no procedural unfairness to the Applicant.

12. In the oral hearing for this leave application, the Applicant submits some ‘new’ documents to the court with a view to show that he was somewhat charged by the Bangladeshi police in respect of an attack on 9 May 2017. He also produces a few letters or certificates apparently by the officers of DDC and BNP and his lawyer in the criminal proceedings, all dated the year 2018, to support the Applicant’s case that he was connected with DDC and BNP and there is real risk that AL, being the opposite party, would cause danger to the Applicant’s life if he has to return to Bangladesh.

13. There is serious doubt with these documents. First, the Applicant has remained in Hong Kong since 2006 and so he could not have committed the alleged attack in 2017. There is simply no evidence that the Bangladeshi police is controlled by AL and as a result he cannot get a fair trial in Bangladesh. Second, the Applicant has left Bangladesh for about 15 years, and so it is quite difficult to see how his alleged political affiliation so long ago would render him the subject of prosecution by ‘political enemies’ 15 years later. Third, if the Applicant was seriously concerned about his personal safety, there is no reason why the Applicant could not have obtained the certificates from the officers of the DDC and BNP earlier. One would imagine that it would be more difficult to obtain supporting certificates to prove his political affiliation with the passage of time. I therefore have reasons to believe that the Applicant was just adopting a ‘drip-after-drip’ approach in producing documents with a view to prolong his stay in Hong Kong.

14. More importantly, the Applicant’s alleged affiliation with DDC and BNP had been considered by the Adjudicator in making the Decision. That was one piece of information already presented before the Adjudicator. In my judgment, the Adjudicator was entitled to put more weight on the past behaviour of the Applicant after he arrived in Hong Kong and came to the conclusion that such behaviour is incompatible with his claim to be someone who would be genuinely at risk of serious harm if he is refouled to Bangladesh.

15. If there has been a genuine change in circumstances such as the commencement of criminal proceedings against the Applicant, it is up to the Applicant, if he so wishes, to request the Director of Immigration to reconsider his claim. However, this is not a ground for the court to reverse the Decision.

16.  As the Applicant’s intended judicial review does not have any prospect of success, I refuse his application for leave to apply for judicial review.”

Grounds for appeal

10.In the Notice of Appeal filed on 28 May 2021, the applicant stated that:

“… [he] will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognised, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

11.The applicant did not file an affirmation in support of the Notice of Appeal.

12.The applicant also failed to comply with the direction made by this court on 19 August 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.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 for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the 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, is treated as the abandonment of the right to an oral hearing.

14.The hearing date on 1 November 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

15.This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.  We have therefore not given any weight to the grounds pertaining to the alleged errors by the Board.

16.The applicant has simply repeated in the Notice of Appeal the grounds already raised in the court below (summarised at [8] of the judge’s decision) which in our view were rightly rejected by the judge.

17.We should add that in this case, the applicant already had the benefit of legal representation from the Duty Lawyer Service in presenting her case to the Director, including the submission of his questionnaire for the CAT Claim as well as the form for the non-refoulement claim.  He was also assisted by an interpreter in filling out the relevant claim forms and at the oral hearing before the Board.

18.Despite the applicant’s complaint that he lacked assistance at the Board level, he declined to answer questions posed to him by the Board, which were for the purpose of clarifying his evidence.  It also does not follow from the application of high standards of fairness that a non-refoulement protection claimant is absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

19.Significantly, the applicant did not in the notice of appeal identify any arguable error of law by the judge, any relevant matter that the judgehad failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

20.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person