RE NESIM

CACV 410/2018

[2019] HKCA 87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 410 OF 2018

(ON APPEAL FROM HCAL 957/2017)

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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 Deputy High Court Judge Bruno Chan given on 10 August 2018 refusing leave 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 17 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 20 March 2015 and 30 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 20 June 2003 as a visitor and was permitted to remain for 14 days. He overstayed and was arrested by the police on 10 August 2009.  He lodged a non-refoulement claim on 12 August 2009.

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 [2] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 20 March 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 30 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 December 2016, the Board dismissed the appeal on 17 November 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [39] of the Board’s Decision, the Board stated that after considering all the evidence produced by the applicant, there was insufficient ground for believing that the applicant will be subject to ill-treatment upon his return.   The Board was also satisfied at [56] that state protection would be available for the applicant.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 27 November 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 27 November 2017, the applicant said that:

“ I am submitting this ground regarding my U.S.M. case, namely I have life problem in my country. I was unable to submit my document proof, I will try my best to obtain all my document as soon as possible. In my country my enemies are very powerful with political influence, they belong to the present ruling party. Many times they try to kill me and injured me too. I like to remain in Hong Kong until my problem is finished. If I go this time my life becomes danger and uncertain.”

10.  The applicant did not request an oral hearing before the judge, who accordingly decided to deal with the application on paper.

11.  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 [11] to [13] of the CALL-1 Form:

“11. The applicant has since not submitted any further documentary proof or representation save for three pages of documents in Bengali without any translation which cannot be relied on, and hence there are no grounds or reasons put before the court for his intended application for judicial review. As noted by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decision of the Director or the adjudicator in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the Director or adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

12. Here the applicant did not even say that the Director or adjudicator had erred in their decision or that there was any procedural unfairness, and having considered their decisions with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

13. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

12.  In the Notice of Appeal dated 22 August 2018 the applicant only stated that he wished to appeal against the judge’s decision without giving any ground of appeal, stating simply that he “want[ed] to appeal for to see my case again in your Honour Court.”

13.  The applicant failed to comply with the direction made by this court on 9 October 2018 requiring him to lodge skeleton submissions by 15 November 2018, despite being advised that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

14.  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.

15.  The hearing date on 13 December 2018 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

16.  The applicant did not put forward any viable grounds of appeal in his Notice of Appeal.  We have carefully considered the judge’s decision and find no error in it.  The appeal is clearly bound to fail.  We would therefore dismiss the appeal.