RE HAQUE AZIZUL

CACV 277/2018

[2019] HKCA 1068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 277 OF 2018

(ON APPEAL FROM HCAL NO. 1153 of 2017)

________________________

________________________

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JUDGMENT

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

1.  On 23 November 2018, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 22 June 2018 refusing him leave to apply for judicial review.     

2.  On 15 July 2019, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal. 

3.  Despite an unless order made by the Registrar of Civil Appeals on 15 August 2019, the applicant has not lodged his written submission in support of his application by the deadline of 2 September 2019.  Pursuant to the unless order, the applicant is debarred from putting forward any written submission and further deemed to be relying only on the matters stated in his notice of motion.    

4.  Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

5.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

6.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.     

7.  The applicant’s notice of motion was more than six months out of time.  While this Court has power under section 24(5) of the Ordinance to extend the time for the applicant to file the notice of motion, we are of the view that we should not do so in this case for the reasons set out below.

8.  Firstly, the delay in this case is more than six months, which is a serious delay.  The applicant stated in his affirmation that he was not aware of the proper procedure.  We, however, do not find this a satisfactory explanation, given the very long delay and the applicant’s failure to elaborate on what efforts he had made to find out what he should do if he intended to take his case further. 

9.  Secondly, the matters stated in the notice of motion do not amount to viable grounds for granting leave to appeal.  Under section 22(1)(b) of the Ordinance, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10.  In the notice of motion, the applicant put forward the following matters as his proposed grounds of appeal:

(1)  There is some error of law in the decision.

(2)  The decision maker relied on COI and previous facts that were in favour of rejecting the applicant’s claim.  The actual situation was different from what was mentioned in the COI.

(3)  The officer and the Court ignored the overwhelming evidence of violence towards minorities.

(4)  The decision betrayed a biased and formulaic approach, which unlikely had fairly assessed the danger to the applicant’s life, and was clearly unreasonable.    

11.  All these matters are directed at the assessment of the applicant’s claim, but does not involve any question of great general or public importance, or otherwise, that ought to be submitted to the Court of Final Appeal for determination.  The requirement for granting leave to appeal under section 22(1)(b) of the Ordinance is therefore not met.  Moreover, as we pointed out in [12] of our judgment, given that the Board had rejected the applicant’s claim as being untruthful, the applicant’s assertion of risks of danger to his life, and his complaints about COI are misplaced and unarguable.   

12.  For the above reasons, we will not extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal.  The notice of motion is accordingly dismissed.

CACV 277/2018

[2018] HKCA 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 277 OF 2018

(ON APPEAL FROM HCAL NO. 1153 of 2017)

________________________

________________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 22 June 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 30 June 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 15 December 2017 dismissing the applicant’s appeal against the Director’s decision.    

2.  The appeal was listed to be heard on 18 October 2018.  The applicant was directed by the Registrar of Civil Appeals to lodge his skeleton argument not less than 28 days before the hearing of the appeal, which was communicated to the applicant in the letters from the court dated 27 and 31 July 2018.  

3.  The requirement for lodging of 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 arguments 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 did not lodge any skeleton argument by the stipulated time.  The hearing date of the appeal was accordingly vacated, and we have proceeded to consider this appeal based on the available materials before us.

5.  The applicant is a Bangladesh national.  He entered Hong Kong illegally and was arrested by the police on 17 August 2014.  He raised a non-refoulement claim on 20 August 2014 based on his fear of being harmed or killed by members of the Chatro League (“CL”), the student wing of Awami League, because he was a member of Chatra Shibir (“CS”), a student wing of Jamaat-e-Islami.  

6.  The applicant’s account of events was detailed in the decisions of the Director and of the Board and summarized by the Judge in [3] to [10] of the Form CALL-1 dated 22 June 2018, [2018] HKCFI 1325.  In brief, the applicant claimed that after CS lost power in 2011, supporters of CL often came to his shop to extort protection money.  When he refused, he was threatened and assaulted.  Since mid-2013, owing to the frequent harassment, the applicant did not return to his shop.  He was told by his father, who ran the shop for him, that the CL supporters continued to come to shop and had uttered death threats against him.  Then on 13 January 2014, some CL people kidnapped the applicant.  They tied him up and assaulted him, and he passed out.  When he regained consciousness, the assailants had left and he managed to free himself and escape.  Nine days later, when he went to make a report to the police, he saw his CL enemies at the entrance of the police station.  Believing that CL controlled the police, the applicant left without making the report. He went to live with his sister in Dhaka.  In February 2014, he went to China and returned in March.  On 14 August 2014, he left for China again and later entered Hong Kong illegally by boat.  

7.  By a Notice of Decision dated 30 June 2017, the Director rejected the applicant’s claim having regard to all the applicable grounds, namely, torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.      

8.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 12 December 2017.  By its decision dated 15 December 2017, the Board dismissed the appeal.  For the reasons stated in [42] to [53] of the decision, the Board found the applicant was not a witness of truth and his account regarding his experiences in Bangladesh not credible.  The Board did not accept he was a member of CS, that he was targeted by CL people, or that he would be harmed or killed by members of CL because of his association with CS.  The Board considered there was no real risk of the applicant being subjected to the harm claimed if he were refouled to Bangladesh, and concluded that none of the applicable grounds was made out. 

9.  The applicant filed his Form 86 together with a supporting affirmation on 28 December 2017 seeking leave to apply for judicial review against the decisions of the Director and the Board.  As against the Director’s decision, the applicant’s grounds for judicial review were that the Director failed to consider the issues of state acquiescence and absence of state protection, failed to appreciate the corruption and incompetence of the government and the misconduct of the police in Bangladesh, and failed to consider the relevant country of origin information (“COI”) and was selective in his approach to COI.  As against the Board’s decision, the applicant’s grounds for judicial review were that the Board failed to make sufficient enquiry, failed to appreciate his limitation in adducing supporting proof and failed to give him sufficient chance to arrange supporting evidence.

10.  The Judge heard the leave application on 25 May and 1 June 2018. 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.  He set out the reasons in [33] to [36] of the Form CALL-1 as follows:

“33. The Applicant had been detained for one reason or another for some time in prison or immigration detention centre. However, he confirmed he had submitted all the proofs he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. The so-called 2013 newspaper photos and cuttings which the Applicant now says he would have also wanted to submit as proof were only alleged to be once in existence. The Applicant had never possessed or even seen them. I am not satisfied the Applicant had been deprived of any chance to fully prove his claim to the Director and the Adjudicator.

34. The Adjudicator rendered her decision only three days after the appeal hearing. The Applicant accused the Adjudicator of not considering his claim carefully and fully.

35. In her report dated 15 December 2017, the Adjudicator clearly stated how she viewed and decided on the Applicant’s claim. She was vivid to the facts and the law. She was alive to the issues of the Applicant’s claim. There is no evidence that she was casual or reckless or prejudicial in her decision. The Applicant’s case was a simple one. It was not unreasonable for the Adjudicator to render her decision just three days after the appeal hearing. The Applicant's complaint has no basis.

36.  The Applicant's other complaints against the Adjudicator and the Director are vague. I have reviewed the Adjudicator’s decision and the Director's decision under ‘rigorous examination and anxious scrutiny’. I am satisfied that the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.”

11.  In the Notice of Appeal dated 29 June 2018, the applicant stated, by way of grounds of appeal, that:

(1)   He will face hardship if he were to return to his home country.

(2)   The Board relied on news which is not officially recognized or is simply hearsay, and cases that are outdated considering the dramatic changes.  The lack of credible source of information has resulted in groundless speculation.   

12.  In respect of Ground (1), the Board had rejected the applicant’s claim that he would be harmed or killed by supporters of CL upon his return to Bangladesh.  Assessment of credibility of the claim and evaluation of the risks claimed are matters for the Board and the Director as primary decision makers.  Like the Judge, we see no proper basis for disturbing the findings made by the Board on the credibility of the applicant and the veracity of his account.  In the light of the Board’s finding that there were no real risks of the applicant being subjected to the harm claimed, the assertion of hardship has no merit.

13.  As to Ground (2), it is unclear what news or cases that the applicant was referring to.  In any event, this ground is clearly misplaced. Firstly, as the Board did not accept the fundamental basis of the applicant’s claim that he would face harm if refouled to Bangladesh, it did not have to consider, and in fact did not discuss, COI for the purpose of establishing whether state protection and internal relocation alternatives are available (see [56] of the Board’s decision).  Secondly, the cases referred to by the Board under the section on Applicable Law remain good law. 

14.  There is no merit in the appeal.  Accordingly, we dismiss the appeal.