RE LOURENCO DA SILVA

CACV 231/2019

[2019] HKCA 1007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2019

(ON APPEAL FROM HCAL 569 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in Form CALL‑1 dated 17 May 2019 [2019] HKCFI 451, refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”).  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 29 December 2017 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 6 December 2016 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  The appeal was listed to be heard on 27 August 2019.  The applicant was directed to lodge three sets of skeleton argument by 30 July 2019 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 directions and the warning were communicated to the applicant by the Notice of Hearing dated 25 June 2019.

3.  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 to be 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.

4.  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

5.  The applicant is a national of Guinea-Bissau, West Africa with right of residency in Nigeria.  He entered Hong Kong on 25 October 2010 with permission to remain as a visitor up to 8 November 2010 when he did not depart and overstayed.  He was arrested by police on 6 September 2011.  He lodged a torture claim on 8 September 2011, which was later considered by the Director as a non-refoulement claim under the Unified Screening Mechanism upon the applicant’s completion of the non-refoulement claim form on 20 April 2005.

6.  The details of the applicant’s claim and his personal background were set out in paragraphs 14 - 15 of the Director’s Decision.

7.  Briefly stated, the applicant claimed that if he were to return to Guinea-Bissau, he would be harmed or killed by Oduche’s family and if he were to return to Nigeria, he would be harmed or killed by his extended family.  The applicant moved to Nigeria from Guinea-Bissau when he was young because his father killed a member of his extended family under self-defence in a fight caused by a land dispute.  Since then, his family was forced to leave Guinea-Bissau and has been living in Nigeria.  While in Nigeria, the applicant started a business and subsequently ran into conflict with his business partner Oduche, who was a Nigerian custom-clearing agent.  In around August 2010, the applicant was kidnapped by some men.  He was forced to drink fuel which caused him severe vomiting and diarrhoea.  He was let go four days later.  The applicant suspected it was Oduche who orchestrated the abduction.  Out of fear, he left for Hong Kong.  While in Hong Kong, he was told that Oduche was dead and that he was accused of killing Oduche.

The Director’s Decision and the Board’s Decision

8.  In the Director’s Decision, the Director assessed the torture risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the BOR 2 risk^[4]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

9.  The applicant appealed the Director’s Decision to the Board.  However, he only filed the notice of appeal to the Board on 7 February 2017 which was substantially out of time.  The Board considered the requirements under section 37ZT of the Immigration Ordinance (Cap 115) (“the IO”) and the reasons and accompanying documents provided by the applicant.  It refused to accept the applicant’s explanation that the delay was due to his ill-health.  He failed to provide any specifics of his health condition and why such condition would have prevented him from filing.  As a result, the Board disallowed the late filing of the notice of appeal to the Board pursuant to section 37ZT (4) of the IO.

The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 6 April 2018 seeking leave to apply for judicial review against both the Director’s Decision and the Board’s Decision.  The applicant failed to advance any grounds of review but simply repeated his claim and asked the court to reconsider his non‑refoulement claim.  Notwithstanding the absence of grounds for review, the Deputy Judge considered the documents before him and reviewed the Board’s Decision.  He dismissed the applicant’s appeal with reasons stated at paragraphs 14 - 21 of the Deputy Judge’s Decision:

“14.     As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision. As such it is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

15.       As for challenging the Board’s decision, the applicant was then again late with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

16.       As the Board’s decision was made on 29 December 2017, the last date for the applicant to make his application fell on 29 March 2018 under the said rule, and hence when he filed his Form 86 on 6 April 2018, he was out of time by eight days, for which he explained in a Letter of Clarification attached to his supporting affirmation that the delay was caused by the loss of some of his documents relating to his claim when the windows of his home were blown out by a typhoon in August 2017, and so when he decided to apply for judicial review of the Board’s decision he had to obtain copies of those lost documents from his former lawyer in DLS which caused the delay.

17.       Given the delay of eight days may not in the circumstances be said to be significant or excessive, I am prepared to accept the applicant’s explanation and extended time for his late application, but still it would not assist his case in the absence of any valid grounds for his intended challenge of the Board’s decision, and it is certainly not for the court to reconsider his non-refoulement claim by way of judicial review as he so requested in his application.

18.       As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

19.       In the applicant’s case, the Board had properly and carefully considered and evaluated the reasons for his late filing of his Notice of Appeal based on the evidence available to it and the applicable legal principles and provisions. As correctly pointed out by the Board, given the fact that it was required to determine the application as a preliminary decision without a hearing, it was incumbent on the applicant to provide clear and sufficient evidence including documentary to satisfy the Board that there were special circumstances to justify allowing his late filing, and for the reasons noted above the Board was right to find those documentary evidence produced by the applicant as far from clear or sufficient to support his alleged health reasons to be accepted as special circumstances for allowing his late filing, and I note, and no doubt also by the Board, that the dates of those outpatient appointment slips were much later than the relevant period when the applicant was required to file his Notice of Appeal. For these reasons I am unable to see any reasonably arguable ground for the applicant’s intended challenge of the Board’s decision.

20.       In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the applicant’s application for late filing of his Notice of Appeal.

21.       For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

11.  The applicant now appeals against the Deputy Judge’s Decision.  By way of the Notice of Appeal dated 28 May 2019, the applicant advanced the following ground:

“the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

12.  Apart from the mere repetition of his claim in the Notice of Appeal, the applicant did not identify any errors in the Deputy Judge’s Decision.

Discussion

13.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

14.  First, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While in non-refoulement cases, the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and 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, procedural unfairness or irrationality in the decision of the Board.

15.  Second, in determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  Third, 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, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the 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.

17.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any such errors in the Deputy Judge’s Decision.  Further, the grounds advanced by the applicant were grounds against the primary decision maker, ie, the Board.  In any event, the Board did not assess the merits of the applicant’s claim but dismissed the applicant’s appeal on the basis of his delay in filing the notice of appeal to the Board.

18.  Thus, these are not viable grounds of appeal and we will dismiss this appeal on this basis alone.

Disposition

19.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.