ALAM MD AFTAB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 312/2022

[2023] HKCA 114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 312 OF 2022

(ON APPEAL FROM HCAL NO. 2275 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 4 August 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2393).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated the 26 September 2018 (“the Board’s Decision”) dismissing the applicant’s appeal from the decisions of the Director of Immigration (“the Director”) respectively dated 2 September 2016 and 15 August 2017 (collectively referred to as “the Director’s Decisions”), rejecting the applicant’s non-refoulement claim.

3.  The appeal was originally listed to be heard on 8 November 2022 and was later refixed to be heard on 24 November 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 11 October 2022 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning were communicated to the applicant by the Notice of Hearing dated 14 September 2022.  However, the applicant did not lodge any skeleton argument in support of his appeal.

4.  The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non‑compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the Court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

5.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated.  We have proceeded to consider this appeal on paper based on the available materials.

Background

6.  The applicant is a national of India. He last arrived in Hong Kong on 9 January 2014 and was given permission to stay until 23 January 2014 as a visitor.  However, he did not depart and overstayed.  On 10 February 2014, he surrendered to the Immigration Department and stated that he had registered with the local United Nations High Commissioner for Refugees and overstayed to wait for asylum claim result.  On 20 August 2014, he lodged a non-refoulement claim on the basis that he would be harmed or killed in India by Akash Chaudhary because of the applicant’s support of different political parties and Ashok Lal Chaudhary owing to a money dispute.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] to [6] of the Leave Decision.

7.  By a Notice of Decision dated 2 September 2016, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk^[1], BOR3 risk^[2] and persecution risk^[3].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.   By a Notice of Further Decision dated 15 August 2017, the Director further assessed and rejected his non-refoulement claim on the basis of BOR 2 risk[4].

8.  On 15 September 2016, the applicant appealed against the Director’s Decisions to the Board.  The applicant attended the hearing before the Board together with his legal representatives on 4 July 2018, 11 July 2018 and 31 July 2018.  Having carefully assessed the evidence, the Board found the applicant’s claim to be inconsistent, deficient and incoherent and that the documents produced did not support his allegations. The Board found that there was no factual basis to support any of the applicable grounds.  The applicant also failed to provide documentary evidence for the loan.  The Board also did not accept that he was ever active in politics, that he was ever victimised by the Village Council, that he ever borrowed money from a money lender, that he was ever involved in or charged with attempted murder, or that he was ever tortured by the police. The Board also did not accept that he came to Hong Kong due to a fear for his life and safety.  In any event, even when leaving aside the issue of credibility, the Board found that the applicant had not proved any real risk that he would be subjected to serious harm on his return to India of such severity as to amount to torture, CIDTP, risk to his life or persecution. Having considered the Country of Origin information (“COI”), the Board also found that state protection and internal relocation would be available to the applicant.  The Board thus considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, dismissed his appeal on 26 September 2018. 

The Leave Decision

9.  On 19 October 2018, the applicant applied for leave to apply for judicial review against the Board’s Decision. In his Form 86, the applicant did not state any ground of challenge.  In his supporting affirmation, the applicant merely asserted that the Board’s Decision was unfair and unreasonable but failed to provide any elaboration or particulars in support.  As the applicant did not request for an oral hearing, the Deputy Judge determined his application on paper.

10.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [17] to [23] of the Leave Decision:

“17. 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).

18. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19. 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.’

20. There is no valid reason to challenge the Board’s Decision.

21. 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.

22. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

11.  On 9 August 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he advanced the following grounds:

“(a) the Learned Judge had failed to consider all applicable grounds of Non-refoulement Claim and in particular non-refoulement on the grounds of risk of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance;

(b) the findings by the Learned Judge that the adjudicator’s decision to be without fault were irrational;

(c) the Learned Judge was wrong in accepting the adjudicator’s finding that the only fact established is that the applicant as an Indian male he faces no risk of any harm at all to conclude that the persecution risk failed.” (sic)

12.  As mentioned above, contrary to this Court’s direction dated 14 September 2022, the applicant failed to lodge any written submissions in support of his appeal.

Discussion

13.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.  In our view, the applicant’s appeal plainly lacks merit and must fail.  The matters raised in his Notice of Appeal are all general and bare assertions without any specific particulars.  He only disagreed with the Deputy Judge but failed to identify any specific error in the Leave Decision.  In any event, it is clear from the Leave Decision that the Deputy Judge that all the grounds for non-refoulement have been addressed by the Judge in light of the evidence.  The applicant had failed to give particulars as to why Article 22 of the Hong Kong Bill of Rights is engaged, or why he had not been treated equally or not offered equal protection of the law.  Further, it is trite that the assessment of evidence, COI materials, 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: Re Kartini [2019] HKCA 1022 at [14]. Moreover, the Board had carefully and thoroughly assessed the applicant’s claim and his evidence before rejecting the applicant’s claim.  The applicant had failed to provide any reason or particulars as to his allegation that the Deputy Judge’s acceptance of the Board’s findings was irrational or otherwise wrong.  Accordingly, we see no error nor basis to interfere with the Leave Decision.

16.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.