RE AHMED WASI

CACV 437/2018

[2019] HKCA 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2018

(ON APPEAL FROM HCAL 116/2018)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 23 August 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 19 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 19 February 2016 and 3 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 4 April 2014 as a visitor.  He overstayed and was arrested on 24 June 2014.  He lodged a non-refoulement claim on 26 June 2014. 

3.  The applicant’s claim was based on threats from a moneylender.  The details of the applicant’s claim have been summarised by the judge at [3] to [11] of the CALL-1 Form.

4.  By a Notice of Decision dated 19 February 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 July 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 a hearing on 19 October 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 19 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [74] – [83] of the Board’s Decision, the Board held that it could not dismiss the possibility that the applicant may be subject to the proscribed risks of harm (other than persecution risk – see [84] – [86] of the Board’s Decision) upon his return.  However, the Board held at [87] – [91] of its Decision that internal relocation within India would be viable, and that the applicant was therefore not entitled to non-refoulement protection.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 25 January 2018 which contained no grounds for seeking relief. 

9.  However, in an affirmation filed in support of the leave application on the same day, the applicant advanced various grounds for judicial review against the Director and the Board which are summarised below:

(i)   failure to consider properly the issues of extended state acquiescence and state protection;

(ii)   failure to conduct sufficient enquiry and critical analysis of relevant Country of Origin Information (COI);

(iii)   failure to provide justification as to why certain COI was preferred to others;

(iv)   cherry-picking of information;

(v)   failure to consider the psychological harm he had suffered; and taking into account irrelevant facts.

10.  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 give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [33] to [43] of the CALL-1 Form:

“33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

35. The Director and the Adjudicator had different findings. The Director did not find the Applicant faced any torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). The Adjudicator, on the other hand, accepted the Applicant faced torture risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk) but such risks would only exist in West Bengal, where Hakim was said to have influence.

36. Where the findings of the Director and the Adjudicator differed, the Adjudicator’s finding, which was more favourable to the Applicant, should supersede the Director’s. However, the Adjudicator was satisfied that the Applicant could relocate himself to such areas outside West Bengal to avoid the risks posed by Hakim. He concluded the Applicant was still not entitled to non-refoulement protection. Such conclusion was not Wednesbury unreasonable.

37. Thus, both the Director and the Adjudicator by different routes concluded the Applicant was not entitled to non-refoulement protection.

38. The Applicant made a number of vague complaints against the Director and the Adjudicator. He did not give specifics even though he was invited to do so in court.

39. I have reviewed the Director’s decision and further decision under ‘rigorous examination and anxious scrutiny’. The Director committed no errors of law and there was no procedural unfairness. He had basis for his findings and conclusions, which were not Wednesbury unreasonable. However, where they differed from the Adjudicator’s, they must be superseded by the Adjudicator’s which were more in the Applicant’s favour.

40. I have also reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. His findings and conclusions were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness.

41. There is no substance in the Applicant’s complaints against the Director or the Adjudicator.

42. Despite there were differences in their findings, both the Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. They had engaged in joint endeavour with the Applicant in the inquiry process. They had given the Applicant reasonable and sufficient opportunities to state and elaborate his case. They had considered the Applicant’s claim carefully. They reached the same conclusion albeit by different routes. The same conclusion was that the Applicant was not entitled to non-refoulement protection. Such conclusion was not Wednesbury unreasonable.

Conclusion

43. The Applicant’s complaints against the Director and the Board are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

Grounds for appeal

11.  In the Notice of Appeal dated 5 September 2018 the applicant did not provide any ground of appeal, stating that these were contained in his affirmation.  In his affirmation dated 5 September 2018 in support of his appeal, he stated that the grounds of appeal were that:

“(1) [the judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2) [the judge] failed to provide detailed reason in support of [his] decision”

12.  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.

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 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

15.  The first ground of appeal stated in the affirmation dated 5 September 2018 was that the judge had erred in law in holding that there was no state acquiescence or involvement. In fact, the judgment does not express a view as to the existence or otherwise of state acquiescence or involvement, and merely points out (in our view correctly) that the complaints by the applicant against the Board and the Director are vague and unparticularised (see [38] of the CALL-1 Form).  Moreover, it is clear from the judgment that the judge decided that the views of the Board, which concluded that state protection might not be available to the applicant, should be accepted in preference to the contrary views of the Director, and that therefore certain of the proscribed risks did exist.  This ground therefore does not assist the applicant.

16.  The judge, however, took the view that the Board’s conclusion that notwithstanding this, the availability of internal relocation meant that the non-refoulement claim was not made out, was one which it was entitled to reach, and had reached in a procedurally fair and legally justified manner.  Although the applicant’s second ground contends that the judge failed to give reasons for his decision, it seems to us that the judge has given sufficient reasons for his decision at [33] – [43] of the CALL-1 Form.

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