RE BARRY OUMAR

CACV 23/2019

[2019] HKCA 715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 23 OF 2019

(ON APPEAL FROM HCAL 281/2018)

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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 3 January 2019 refusing the applicant 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 25 January 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 16 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Guinea.  He entered Hong Kong on 5 August 2010.  He was arrested on the same day and was later convicted of trafficking in dangerous drugs.  After serving his sentence, he was referred to the Immigration Department for deportation whereupon he lodged a non-refoulement claim. 

3.  The applicant’s claim was based on threats from a group of drug dealers.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 16 October 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], 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 9 January 2018, the Board dismissed the appeal on 25 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [54] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [60] that state protection would be available for the applicant.

The deputy judge’s decision

7.  The applicant filed a Form 86 on 22 February 2018 which contained the following grounds for judicial review, summarised below:

(1)   that the Director and the Board reached the wrong decision in assessing his USM claim;

(2)   that their decisions were unfair and unreasonable under the Wednesbury test;

(3)   that their decisions failed to take into account that right to life must be protected from extra-judicial killings which he may face if deported to his home country; and

(4)   that the Board failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim and his appeal. 

8.  In the affirmation in support of the leave application dated 20 February 2018, the applicant exhibited the relevant documents in support of his judicial review application.

9.  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 [16] of the CALL-1 Form:

“11. These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the adjudicator had erred in their decision, or how were their decisions unfair or unreasonable, or in what way were extra-judicial killings relevant to his case. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by him in those decisions, I do not find any basis or merit in any of these complaints of the applicant.

12. The applicant did at the oral hearing of his application and with leave of the Court produce copies of the following documents which he claimed to have been obtained recently in response to the Board’s criticism of lack of documentary evidence to support his claimed fear of threats from those drug dealers:

(1) police entry dated 26 February 2011 of the Nigeria Police of a complaint made by the applicant’s father of being threatened at his home by some unknown gunmen looking for the applicant for disappearing with their money and goods;

(2) police entry dated 12 September 2012 of the Nigeria Police of a complaint by the applicant’s sister of the kidnap and murder of the applicant’s father by unknown gunmen;

(3) Death Certificate of the applicant’s father’s death dated 12 September 2012 issued by Probate Registry of Birth and Deaths of Abia State;

(4) announcement of Burial Arrangement for the applicant’s father;

(5) police entry dated 10 October 2014 of the Nigeria Police of a complaint of the kidnap of two of the applicant’s siblings by the same unknown gunmen;

(6) certificate of Divorce of the applicant’s marriage dated 24 March 2014 issued by the Customary Court of Abia State.

13. Even putting aside the question of authenticity of these documents, or the scarcity or lack of details in some of these documents such as the police entries of the various crimes being complained of by the applicant’s family, in particular the cause of death of the applicant’s father simply stated as assault/murdered in the Death Certificate which led to further doubt over the truthfulness or accuracy of their contents, that even if they were all genuine these documents do not in my judgment advance the applicant’s case any further, as it has been established by both the Director and the Board based on reliable and objective COI that if those threats from the drug dealers were indeed true and in the absence of any official involvement that state or police protection would be available to the applicant upon his return to either Guinea or Nigeria.

14. Further, the fact that it has also been established by the Director in his decision, and in my view would have been by the Board as well on the basis of the COI available were it found it necessary to consider that issue, that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other areas of either Guinea or Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. In the premises and having proceeded to consider the decisions of both the Director and the Board 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.

16. 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

10.  In the Notice of Appeal dated 15 January 2019 the applicant put forward the following ground of appeal:

“that the gravity of my circumstances have [not] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly”.

11.  In his affirmation of the same day filed in support of the appeal, the applicant said that he was unaware of the time limit for appeal, even though his appeal was in fact within time, as being a final rather than interlocutory appeal, the time limit for appealing is 28 days, and not 14 days as the applicant mistakenly believed.  He referred to the order made by the judge and the documents he filed in the court below.  He submitted that the Board and the Director committed errors in their decisions in that they did not see the applicant’s grounds to reverse their decisions.

12.  The applicant agreed by a letter of 15 January 2019 that the appeal could be heard by two judges. 

13.  The applicant failed to comply with the direction made by this court on 1 February 2019 requiring him to lodge skeleton submissions not less than 28 days before the hearing, despite being warned 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.  Compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  Skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  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, and non-compliance with this requirement notwithstanding an unless order is treated as the abandonment of the right to an oral hearing.

15.  The hearing date on 17 April 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

16.  The applicant did not identify any error on the part of the judge or give any viable ground of appeal.  His Notice of Appeal complained only of errors by the Director and the Board.  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.

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