RE AHMED TANVEER

CACV 370/2021

[2021] HKCA 1705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 370 OF 2021

(ON APPEAL FROM HCAL 1157/2018)

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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 23 July 2021 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 (“Board”) dated 15 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 16 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He last arrived in Hong Kong on 4 February 2016 and he was permitted to remain as a visitor until 4 April 2016.  The applicant overstayed and surrendered himself to the Immigration Department on 6 April 2016.  He lodged a non-refoulement claim on 17 June 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditors for failing to repay his loan if he returned to India.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 Form[1].

4.  By a Notice of Decision dated 16 November 2017 (“Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board.  After a hearing on 17 April 2018, the Board dismissed the appeal on 15 June 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [68] to [84] of the Board’s Decision, while the Board generally found the applicant to be a credible witness and although it accepted that the applicant was in financial difficulty after borrowing from his creditors and was unable to repay his loans, it did not accept that the applicant faced any real risk of harm or that the threats by the creditors were serious.

The judge’s decision

7.  The applicant filed a Form 86 on 21 June 2018 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review, nor did he do so in his affirmation in support of the leave application.

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 grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [8] to [13] of the CALL-1 Form:

“8. In its decision the Board accepted the Applicant’s claim of threats from his creditors over his loan but found no evidence of any real intention on their part to seriously harm or kill him, that in any event with reasonable internal relocation available upon his return to India for him to move to other area away from his home district without any risk of being located by his creditors that his claim for non-refoulement protection failed on all applicable grounds.

9. On 21 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just attached his hearing bundle used for his appeal before the Board but without putting forth any ground for his intended challenge, nor did he do so at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. In the premises and having considered 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.

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

9.  In the Notice of Appeal filed on 29 July 2021, the applicant stated that:

“… I face hardship if I return back to my country. Because my life is in danger in my country. It is my request to the Court to please allow me to stay in Hong Kong till my problem is solve.”

10.  The applicant did not file an affirmation in support of the Notice of Appeal.

11.  The applicant also failed to comply with the direction made by this court on 19 August 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

12.  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 is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 1 November 2021 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

14.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.  The applicant has failed to identify any error on the part of the judge in arriving at his decision, nor can we discern any.

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