RE ANWER DANISH

CACV 256/2019

[2020] HKCA 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 256 OF 2019

(ON APPEAL FROM HCAL 30/2017)

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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 Lok J given on 5 June 2019 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 dated 23 January 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 15 January 2016 and 3 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 13 September 2013 and was permitted to remain until 27 September 2013.  He was arrested by the police on 7 October 2013.  He lodged a non-refoulement claim on 7 October 2013.

3.  The applicant’s claim was based on threats from his creditors.  The details of the applicant’s claim have been summarised at [34] to [36] of the Board’s Decision.

4.  By a Notice of Decision dated 15 January 2016 (“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 3 November 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 November 2016, the Board dismissed the appeal on 23 January 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [46] of the Board’s Decision, the Board found that the applicant’s case was not reliable or credible.

The judge’s decision

7.  The applicant filed a Form 86 on 7 February 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 7 February 2017, the applicant claimed that the creditors, together with the local police, will hurt him or even kill him if he returns to India. He asked for more time to submit supporting documents.

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  After giving due consideration to the decisions of 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 [3] to [6] of the CALL-1 form:

“3.  In the Form 86 and his supporting affirmation, the Applicant just complains that he is not satisfied with the Decision and repeats his allegation that his life will be in danger if he has to go back to India. Nothing has been put forward to suggest that the Adjudicator had erred in making the Decision. Neither is there any allegation of procedural unfairness as to the way in which the Adjudicator conducted the oral hearing.

4.  I have carefully considered the detailed written decision of the Adjudicator. In my judgment, the Adjudicator had properly applied the law in reaching the Decision. All the grounds for non-refoulement claims had been properly considered. An oral hearing was held, in which the Applicant decided not to give any oral evidence and just to rely on all the other materials before the Board. The Adjudicator had carefully and properly considered all such evidence and materials, and the Adjudicator cannot be faulted for reaching the conclusion that the Applicant had failed to establish any of the grounds for non-refoulement claims.

5.  Though the Applicant was not legally represented in the hearing, the Adjudicator had properly discharged the duty owed to self-represented claimant in the conduct of the hearing. He had also properly explained to the Applicant that it was his burden to prove his case and the various issues that might affect his claim. The Applicant was given adequate opportunity to address those issues, and there was simply no procedural unfairness to the Applicant.

6.  As the Applicant’s intended judicial review does not have any prospect of success, I refuse his application for leave to apply for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 14 June 2019 the applicant advanced the following grounds of appeal:

“I would like to say regarding my judicial review application was rejected by High Court and my USM case was rejected by Immigration Department too. But still I have life threaten by my enemies in my country and I was submit my supporting document proof to High Court too but they disregard all and reject my case. I am seeking solution for my life protection. Thank you.”

12.  The applicant failed to comply with the direction made by this court on 4 July 2019 requiring him to lodge skeleton submissions 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.

13.  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.

14.  The hearing date on 17 September 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

15.  We have repeatedly held that an application for judicial review does not operate as a further appeal, and that the court will only interfere with the decision of the Director or the Board on public law grounds.  The applicant has failed to identify any.  He has also failed to identify any error on the part of the judge.  The bare assertion by the applicant that it is unsafe for him to return is not a valid ground for judicial review and it is not a viable ground of appeal. 

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