Case Detail

CACV 242/2019

[2021] HKCA 377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 242 OF 2019

(ON APPEAL FROM HCAL 1183/2018)

________________________

RE:

BHUIYAN YEASIN

Applicant

________________________

Before: Hon Kwan VP, Chu JA and Barma JA in Court

Date of Judgment: 25 March 2021

________________________

J U D G M E N T

________________________

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

1. On 16 April 2020, this court (Kwan VP, Chu JA and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the judge”) on 23 May 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2. The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3. The applicant subsequently applied, by a Notice of Motion dated 13 July 2020, for leave to appeal to the Court of Final Appeal out of time. The applicant stated in the Notice of Motion that:

“On 16 April the judges of the Court of Appeal refused my leave to apply for judicial review, I am not agree with their decision, but I have no chance to appeal, so I want to go to the Court of Final Appeal for justice.”

4. In the affirmation dated 13 July 2020, the applicant deposed that:

“Affirmation for my late filing of motion as I did not get the judgment. Immigration ask me then I came and filing the case.”

5. Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 15 July 2020, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6. On 19 January 2021, the applicant filed a Request for Dismissal of Appeal for the appeal filed on 30 May 2019 (i.e. the date of the Notice of Appeal). By a letter dated 26 January 2021, the applicant was asked to indicate whether he is requesting for the dismissal of the Notice of Motion, as his appeal has already been dismissed on 16 April 2020. The applicant did not reply to the letter dated 26 January 2021.

7. As the applicant has failed to clarify the purpose of the Request for Dismissal of Appeal dated 19 January 2021, we would proceed to consider the merits of the application for leave to appeal to the Court of Final Appeal.

8. The application was made some two months out of time. The only explanation that was given for the delay was the alleged failure of the applicant to receive the judgment, which was sent to the address provided by him to the court. We have real doubts as to whether the applicant’s excuse is a genuine one, but shall deal with the merits of the application in any event.

9. Having considered the applicant’s Notice of Motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have, therefore, determined the applicant’s application on the basis of the documents filed.

10. The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters he has raised.

11. The applicant has not identified any error in our judgment. In our view, the intended appeal has no prospect of success.

12. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13. For these reasons, the Notice of Motion dated 13 July 2020 is dismissed.

(Susan Kwan)	(Carlye Chu)	(Aarif Barma)
Vice-President	Justice of Appeal	Justice of Appeal

The applicant acting in person

[1] See [2020] HKCA 198

CACV 242/2019

[2020] HKCA 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 242 OF 2019

(ON APPEAL FROM HCAL 1183/2018)

____________________

RE:

BHUIYAN YEASIN

Applicant

____________________

Before: Hon Kwan VP, Chu JA and Barma JA in Court

Date of Judgment: 16 April 2020

___________________

J U D G M E N T

___________________

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

1. This is an appeal against the decision of Deputy High Court Judge KW Lung given on 23 May 2019 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 dated 7 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 17 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2. The applicant is a national of Bangladesh. He entered Hong Kong on 1 December 2015 illegally and was arrested by the police on 5 December 2015. He lodged a non-refoulement claim on 10 December 2015.

3. The applicant’s claim was based on threats from members of an opposing political party. The details of the applicant’s claim have been summarised by the judge at [3] to [4] of the CALL-1 form.

4. By a Notice of Decision dated 17 October 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^{^[1]}, the BOR 3 risk^{^[2]}, the persecution risk^{^[3]}, and the torture risk^{^[4]}.

5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 16 March 2018, the Board dismissed the appeal on 7 June 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection. At [53] of the Board’s Decision, the Board found that the applicant’s evidence was far from convincing.

The judge’s decision

6. The applicant filed a Form 86 on 25 June 2018 which contained the following grounds for judicial review:

(1) the Board unlawfully fettered his discretion by refusing the appeal on the ground that they did not satisfy the requirement;
(2) the Board acted in a procedurally unfair manner in dealing with the appeal;
(3) the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness; and
(4) the Board failed to meet the greater care and duty owed to a self-represented claimant.

7. In his affirmation in support of the leave application dated 25 June 2018, the applicant advanced the following grounds for judicial review:

(1) the hearing bundle for the hearing before the Board was not provided earlier or with interpretation, he was confused as to what was happening;
(2) the late provision of hearing bundle and the lack of interpretation led the Board to question the applicant’s credibility; and
(3) the Board had significantly relied on sources of news which were not officially recognized or simply hearsay, causing the Board to speculate that it was safe for him to return.

8. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [14] of the CALL-1 form:

“12. The applicant had appeared before me. He confirmed that his friend had explained to him the contents of the hearing bundle and the Director’s Decision before the appeal hearing and he had no problem with the Adjudicator’s questions. He had no complaint against the Adjudicator or the interpreter.
13. As the Adjudicator said in his Decision, the applicant’s claim depended on the credibility of his evidence. This is a matter for the Adjudicator who has the power of investigation. See Ali Haider CACV8/2018, [2018] HKCA 222 at §13. There is nothing amiss in the Adjudicator’s finding of the facts of the applicant’s claim.
CONCLUSION
14. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the proposed judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

9. In the Notice of Appeal dated 30 May 2019 the applicant advanced the following grounds of appeal:

“The Plaintiff 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 recognized, 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.”

10. The applicant failed to comply with the direction made by this court on 27 June 2019 requiring him to lodge skeleton submissions by 28 days before the hearing date, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

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 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, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

12. The hearing date on 17 September 2019 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

13. The only grounds of appeal set out in the Notice of Appeal complain of errors on the part of the Board, but do not identify any error on the part of the judge. They are therefore not viable grounds of appeal. As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review. In any event, having examined the judge’s decision, we can see no error in it.

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

(Susan Kwan)	(Carlye Chu)	(Aarif Barma)
Vice-President	Justice of Appeal	Justice of Appeal

The applicant acting in person

[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

RE BHUIYAN YEASIN

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