RE T

CACV 203/2018

[2019] HKCA 222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 203 OF 2018

(ON APPEAL FROM HCAL 166/2017)

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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 Deputy High Court Judge Woodcock given on 23 May 2018 refusing 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 21 March 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 5 May 2016 and 25 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Ghanaian national who transited through Hong Kong International Airport on his way to Manila, Philippines from China on 5 December 2015. However, he was refused permission to land in Manila and repatriated back to Hong Kong the following day.  On 16 December 2015, the applicant lodged a non-refoulement protection claim.

3.  The applicant’s claim was based on threats from two men, identified as George and Geoff, with whom he had engaged in illegal activities in the past.  The details of the applicant’s claim were summarised in some detail by the deputy judge at [3] to [22] of her judgment.

4.  By a Notice of Decision dated 5 May 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 25 January 2017, 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 holding four hearings between 30 June 2016 and 24 February 2017, and considering both Decisions of the Director, the Board dismissed the appeal on 21 March 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [47] of the Board’s Decision, the Board found that the applicant failed to make out a case for needing non-refoulement protection.  The Board was also satisfied at [54] that state protection would be available for the applicant and at [66] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 28 April 2017, which was amended on 26 January 2018.  As amended, it contained the following grounds for judicial review:

(i)   the adjudicator failed to properly assess the risk of persecution, particularly the risk of persecution as a member of a particular social group and/or due to real or perceived political opinions because of the applicant’s (i) history of forcible/coercive recruitment into criminal/gang activities with Geoff/George (ii) his refusal to participate further in such illegal activities with Geoff/George and (iii) role as a witness and/or testifying in a case brought against George;

(2)   the adjudicator failed to properly assess the risk of cruel, inhuman or degrading treatment or punishment (“CIDTP”);

(3)   the adjudicator failed to investigate or take into account or place appropriate weight on the applicant’s risk of arbitrary deprivation of life contrary to BOR 2;

(4)   the adjudicator failed to investigate or take into account or place appropriate weight on relevant country of origin information (“COI”); and

(5)   the adjudicator failed to investigate or take into account the availability of internal relocation options and/or did not have regard to evidence which indicated that internal relocation was not feasible in the applicant’s particular circumstances.

9.  The applicant was legally represented in the hearing below, which took place on 22 January 2018.  On 23 May 2018, the deputy judge handed down a written judgment, in which, having summarised the facts and background of the case and having given due consideration to the decisions of the Director and the Board, the deputy judge refused to give leave for judicial review.  The deputy judge gave extensive and detailed reasons for refusing such leave at [43] to [72] of her judgment, in which she dealt with each of the five grounds set out above, together with other submissions made on behalf of the applicant by his legal representatives, including a complaint that there had been a failure on the Board’s part to adhere to the high standard of fairness required, by refusing requests to facilitate the obtaining of witness testimony from Ghana by telephone for the purposes of the appeal to the Board.  The deputy judge rejected this submission at [69] – [70] of her judgment, pointing out that as the evidence sought to be adduced would be new evidence which had not been placed before the Director, it should have been dealt in accordance with the procedure specified under the Immigration Ordinance (Cap 115), section 19 of Schedule 1A which requires notice to be given to the Board and served on the other party to the appeal of the intention to rely upon such evidence.  This was not done, despite there having been ample time to do so.  The deputy judge also noted that the new evidence was not such as would have taken matters any further, as much of it appeared to relate to matters concerning the applicant’s involvement with Geoff and George, which the Board had largely accepted.

Grounds for appeal

10.  The applicant was not legally represented in this appeal.  In his Notice of Appeal dated 4 June 2018, which was handwritten and in part not legible, the applicant contended that:

“The judge was wrong in fact and in law in holding that the applicant has no realistic prospect of success should leave be granted without considering the fact that the applicant was given no chance to provide evidence and later the judge either ignored or omitted the fact that the said applicant was detained throughout the claim and so far his and his lawyers request to give evidence was turn down with excuses for the grounds [illegible] that he was given enough to give evidence but gave none…. The judge wrongly exercised her discretion in that: the applicant was not given a chance to provide evidence as described by the judgment. Also there are issues covering this case which are still under review”

11.  The applicant failed to comply with the direction made by this court on 9 November 2018 requiring him to lodge skeleton submissions by 31 December 2018, 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, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 30 January 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

14.  The applicant did not file any affirmation or submissions to support his appeal.  The complaints in the Notice of Appeal regarding the alleged failure to allow the applicant to give evidence are not particularised.  The applicant himself was permitted to give evidence before the Board.

15.  Insofar as this complaint relates to the applicant’s application before the Board to have a witness in Ghana give evidence by telephone, this was dealt with by the Board at [22] of the Board’s Decision, where it stated:

“The Petitioner through his legal representative Ms McClellan applied for a witness in Ghana to give evidence by telephone. It was a novelty which with utmost respect I rejected because: -

(i) there was no such procedure;

(ii) she did not even have the name and identity of the intended witness; and

she knew or ought to have known with her experience that there was no witness statement.”

16.  Additionally, as the deputy judge pointed out, the Immigration Ordinance contains a procedure for to adducing new evidence before the Board.  The conditions which must be satisfied for such new evidence to be taken into account are specified in section 18(2) of Schedule 1A to the Ordinance.  Under section 19 of Schedule 1A to the Ordinance, a party to an appeal who wishes to present any evidence under section 18(2) of Schedule 1A must file with the Board a written notice to that effect, specifying the nature of the evidence and the reasons why it could not have been produced at the earlier hearing before the Director.  The notice must also be served on the other party.  Despite being legally represented, the applicant did not comply with these requirements. 

17.  Moreover, as the Board observed, the applicant did not identify the proposed witness or disclose the scope of his or her evidence.  In those circumstances, we cannot see any basis for criticizing the way in which this matter was dealt with by the Board, or by the deputy judge.

18.  As for the suggestion that there are “issues concerning this case which are still under review”, this is not a viable ground of appeal.  The allegation is wholly unparticularised, and is in any event, not a matter that was relied upon before the deputy judge.  

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