BAH MOHAMED BACHIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 556/2018

[2019] HKCA 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2018

(ON APPEAL FROM HCAL NO 791 OF 2017)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the decision of Campbell-Moffat J on 12 November 2018 ([2018] HKCFI 1849). By her decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Ghana who arrived in Hong Kong on 18 June 2011 and was arrested by police on 30 November 2011 for overstaying.  After he was transferred to the Immigration Department, he lodged a non-refoulement claim by way of written representation on 2 December 2011. His non-refoulement claim was made on the basis that if he were to be returned to Ghana, he would be (i) harmed or killed by his stepmother Fatimah and her children because they wanted to deprive him of his share in his father’s estate, (ii) lynched by the angry villagers who considered him as an abominable culprit, and (iii) arrested and tortured by the police because Fatimah had framed a false rape case against him.  He has been released on recognizance pending the determination of his claim.

The Director’s decision

3.  By a Notice of Decision dated 15 July 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk[1], BOR 3 risk[2] and persecution risk[3].

4.  The Director decided that the ill-treatment inflicted on the applicant, whether physical or mental, even if true, had not reached the threshold of a minimum level of severity.  His problem with Fatimah and her children is a private dispute and his conduct was inconsistent with that of a person who genuinely feared of being attacked, tortured or killed. There are no substantial grounds for believing that the applicant would be subjected to a real future risk of being harmed or tortured by the police.  In addition, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected by the Director.

5.  By a Notice of Further Decision dated 24 August 2017, the Director rejected the applicant’s claim on all applicable grounds including the right to life under article 2 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”).  The Director considered that the evidence adduced by the applicant, which was an email from his friend, was hearsay information and the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights, particularly BOR 2 risk, being violated upon his return to Ghana.

The Board’s decision

6.  The applicant’s appeal against the Director’s decisions was heard by the Board on 29 August 2017.The Board considered that the applicant was not a credible witness because of his inconsistent and implausible evidence as well as his non-persuasive explanations.  The Board did not accept that the applicant would face a real risk of proscribed harm if he is refouled to Ghana.  Therefore, the appeal was rejected on 8 September 2017.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 20 October 2017, and subsequently filed a second affirmation on 23 April 2018, to seek leave to apply for judicial review against the decisions of the Director and the Board.  The two affirmations merely exhibited a number of documents. He did not state any grounds of application in the Form 86 or his affirmations.

The judge’s decision

8.  The judge decided that there is no error of law or procedure.  There is also no evidence of procedural unfairness or a failure to adhere to a high standard of fairness throughout.  The judge concluded that there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and refused his leave application on 12 November 2018 accordingly.

9.  The applicant filed a Notice of Appeal against the decision of the judge on 26 November 2018.

The grounds of appeal

10.  In the Notice of Appeal, the applicant merely stated “Appeal again refused” in the space for setting out the grounds of appeal.

Non-compliance with unless order

11.  Directions were given by the Registrar of Civil Appeals by a letter dated 18 December 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.

12.  The appeal was scheduled to be heard on 11 March 2019.

13.  A notice of hearing of the appeal dated 23 January 2019 was issued and sent to the applicant by registered and ordinary post. In the notice, he was reminded that he should comply with the above directions of the Registrar.  The letters sent to the applicant have not been returned undelivered.

14.  The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 11 February 2019).  As there was non-compliance with the unless order, the hearing date has been vacated pursuant thereto.  The court informed the applicant by letter dated 12 February 2019 that the hearing date of 11 March 2019 has been vacated and that his appeal will be dealt with on paper by the Court of Appeal.

15.  On 21 February 2019, the applicant telephoned the court clerk (apparently upon receipt of the letter dated 12 February 2019) stating that he did not receive the directions given by the Registrar on 18 December 2018.

16.  He also wrote to the court on 21 February 2019 referring to the Registrar’s letter sent to him on 18 December 2018 and paragraph 3 in particular in which it was stated that upon the hearing date being fixed, “[he] will be given 28 days to submit 3 sets of skeleton argument to the court”.  He stated that he “did not receive update of it” and he was in the appeal registry to submit the skeleton argument but the staff asked him to wait for “update of hearing”.  He reiterated he did not receive the “update” and the next letter he received was on 17 February 2019 informing him he had failed to lodge his skeleton argument, which was not true.

17.  The letter of the Registrar dated 18 December 2018 giving directions on the lodging of a skeleton argument not less than 28 days before the hearing of the appeal is clear.  The notice of the hearing date was sent to the applicant informing him of the date and time of the hearing of the appeal.  That notice has not been returned to the court undelivered.  No “update” of the Registrar’s directions of 18 December 2018 is required.

18.  A record is maintained by the court staff of any written or verbal communication from the applicant.  There is no record of any attempt by him to lodge a skeleton argument.  If he had indeed attempted to lodge the skeleton argument before it was due (as he would appear to say), it is unlikely that the staff of the registry would deter him from doing so.

19.  We do not accept the applicant’s explanation for his failure to comply with the unless order.  We will deal with his appeal without an oral hearing.

Discussion and disposition

20.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal shall be dismissed[4].

21.  As the applicant did not put forward any grounds of appeal, we dismiss his appeal accordingly.