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CACV 191/2023, [2023] HKCA 1287
On Appeal from [2023] HKCFI 1512
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 191 OF 2023
(ON APPEAL FROM HCAL 870/2019)
________________________
| RE: |
TOURAY NFAMARA |
Applicant |
________________________
| Before: |
Hon Barma JA and Lisa Wong J on paper |
| Date of Judgment: |
15 November 2023 |
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
THE APPEAL
1. This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 13 June 2023 (“Judge’s Decision”) refusing the applicant leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 15 February 2019 (“Board’s Decision”) which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 11 May 2018 (“Director’s Decision”).
BASIS OF THE NRF CLAIM
2. The basis of the NRF Claim made by the applicant, a national of Gambia now aged about 38, is a fear of being harmed or killed by his aunt and his aunt’s brothers due to a family dispute.
3. The circumstances giving rise to such alleged fears have been set out in detail in paragraph 6 of the Director’s Decision and paragraph 22 of the Board’s Decision and in gist in [4] and [5] of the Judge’s Decision embodied in the Form CALL-1 dated 13 June 2023[1] (“Form CALL-1”).
4. Briefly:
(1) In an incident which occurred in around May 2014, the applicant hit the daughter of his aunt after she insulted him, which led to his aunt attacking him with a piece of burning firewood. In response, the applicant pushed his aunt who then fell and broke her arm.
(2) His aunt’s brothers (one of whom was a soldier and one was a policeman) thereafter tried to confront and attack the applicant with a group of around 20 people, but he had fortunately escaped.
(3) The applicant’s parents reported the incident to the police. Although the aunt and her brothers were questioned, they were not charged and the applicant was told that the police would not get involved as this was family matter.
OVERSTAY IN HONG KONG AND LODGMENT OF NRF CLAIM
5. The applicant entered Hong Kong as a visitor on 10 August 2014 with permission to stay until 8 November 2014. He did not leave after 8 November 2014 and had overstayed since 9 November 2014. On 10 November 2014, he surrendered to the Immigration Department.
6. The applicant raised the NRF Claim by written representation on 24 July 2015. He subsequently completed and lodged a non-refoulement claim form on 19 March 2018 (“NCF”).
DIRECTOR’S DECISION
7. In processing the NRF Claim, in addition to the NCF, the Director’s representative(s) conducted a screening interview with the applicant on 8 May 2018. At the time, the applicant was legally represented.
8. The Director found the NRF Claim unsubstantiated under all applicable grounds for non-refoulement protection namely, torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].
APPEAL TO BOARD AND BOARD’S DECISION
9. The applicant appealed against the Director’s Decision to the Board.
10. The Board considered that the applicant’s case could be fairly disposed of without an oral hearing and determined the NRF Claim on the written material before it.
11. The Board dismissed the appeal against the Director’s Decision on all applicable grounds for non-refoulement protection for the following reasons:
(1) The injuries sustained by the applicant (as a result of his aunt’s attack) were not serious.
(2) In any event, there were suitable options of internal relocation within Gambia for the applicant to avoid his aunt and her brothers,
(3) State protection was also available to the applicant.
APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW AND JUDGE’S DECISION
12. By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 870/2019 on 29 March 2019 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision, without putting down any proposed ground for judicial review.
13. In the supporting affirmation filed on the same day, the applicant merely attached a copy of the Board’s Decision and did not state or elaborate on the basis or ground(s) of his intended judicial review.
14. The applicant did not ask for an oral hearing. After considering the papers before him, the Judge refused to grant leave to apply for judicial review of the Board’s Decision for the reasons set out at [12] – [18] of the Form CALL-1:
“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’
15. The applicant has not been able to raise any valid reason to challenge the Board’s Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
18. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”
GROUNDS OF APPEAL
15. By the notice of appeal filed herein on 23 June 2023, the applicant appealed against the Judge’s Decision. He did not put forward any grounds of appeal, properly so called, but merely stated that he “would like to review [his] case”.
16. In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals by letter dated 16 August 2023, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.
17. The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1. The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants. Non-compliance 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 a 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 is treated as the abandonment of the right to an oral hearing.
18. The hearing date on 25 October 2023 was therefore vacated, leaving us to deal with the appeal on paper on the basis of the material already filed with the court.
DISCUSSION
19. In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.
20. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
21. The applicant did not in the Form 86 or the accompanying affidavit raise any error of law, procedural unfairness or irrationality in either of the Board’s Decisions. That being the case, the application for leave to apply for judicial review of the Board’s Decision was doomed and rightly dismissed.
22. Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which will be considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere if and only if the judge had erred in law or had failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].
23. The applicant did not identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong in the notice of appeal. Nor can we discern any.
24. In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
DISPOSITION
25. For the above reasons, there is no basis for the Court of Appeal to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Aarif Barma) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the Court of
First Instance |
The applicant acting in person
[1] [2023] HKCFI 1512.
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
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