RE IQBAL MOHAMMAD ASIF

CACV 445/2018

[2019] HKCA 99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 445 OF 2018

(ON APPEAL FROM HCAL NO. 1144 of 2017)

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J U D G M E N T

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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 5 September 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 December 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 13 March 2015 and 19 June 2017 rejecting his non-refoulement claim.    

2.  The appeal was listed to be heard on 17 January 2019.  The applicant was directed by the Court to lodge his skeleton argument by 20 December 2018, and also warned that should he fail to do so, he shall be deemed to waive his right to have an oral hearing, in which case the hearing date would be vacated and his appeal would be processed on paper.  The direction and the warning were communicated to the applicant in the Notice of Hearing dated 4 December 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 an Indian national.  He came to Hong Kong on 5 September 2014 and was permitted to remain as a visitor until 12 September 2014.  He overstayed and was arrested by the police on 26 October 2014.  He lodged a non-refoulement claim on 28 October 2014 based on his fear of being harmed or killed by supporters of All India Trinamool Congress party (“TMC”) because he was a supporter of the Communist Party of India (Marxist) (“CPIM”).  

6.  The applicant’s case was set out in detail in [7] of the first decision of the Director.  In gist, the applicant said he joined the CPIM in 2012 and had taken part in some of its activities.  Since 2013, he was repeatedly asked by a powerful member of TMC to switch to TMC, but he refused. On 15 August 2014, when he again refused, the person threatened to kill him.  The applicant visited Hong Kong on 5 September 2014 with his employer.  On 8 September 2014, he learned from his father that the TMC supporters were looking for him and they had slapped his brother for refusing to join their party.  He therefore decided to stay in Hong Kong.  

7.  By the first decision dated 13 March 2015, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds. By a further decision dated 19 June 2017, the Director also determined against him on the BOR 2 risk[4] ground.      

8.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 28 November 2017.  The applicant elected to answer questions from the Board.  By a decision dated 15 December 2017, the Board dismissed the appeal.  Having regard to the applicable law and principles, the Board concluded that the applicant failed to establish a case in respect of any of the applicable grounds, finding at the same time that his claim was not credible. 

9.  The applicant filed his Form 86 together with a supporting affirmation on 27 December 2017 seeking leave to apply for judicial review against the decision of the Board.  The applicant did not set out any ground for judicial review in either the Form 86 or the affirmation.  By the Form CALL-1 dated 5 September 2018, [2018] HKCFI 1900, the applicant was informed that the Judge had refused to give leave to apply for judicial review.  The Judge’s reason for the decision was set out in [12] and [13] as follows:

“12. … 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 Director and 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. The Applicant’s case had no merit whatsoever. He has never been the subject of harm. He provided no evidence of his political affiliations and, at best, was a very minor member of his party. His account was not consistent and his application for refugee status was not made immediately upon entry to the country. There is no criticism of their determinations, which were open to them on the facts, eminently reasonable and procedurally sound.

13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

10.  In his notice of appeal filed on 10 September 2018, the applicant merely stated that he wanted to appeal but did not set out any grounds of appeal.

11.  The focus of the Court of Appeal in an appeal from the Court of Instance is the correctness of the decision of the judge below.  It is not the function of the Court of Appeal to reconsider the merits of the applicant’s non-refoulement claim.  Given that the applicant has not identified any error in the Judge’s decision and reasons, there is no proper basis for this Court to disturb the Judge’s decision.  The Judge found, and we agree, that there was no discernible error of law or unfairness in the Board’s decision and the process by which it came to its decision.        

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