RE MUSED SHEKH

CACV 598/2018

[2019] HKCA 724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 598 OF 2018

(ON APPEAL FROM HCAL 992/2017)

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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 Campbell-Moffat J given on 14 December 2018 refusing the applicant leave to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 21 December 2016 and 10 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 30 December 2014 and 9 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 29 February 2012 illegally and was arrested by the police on 12 April 2012.  He lodged a non-refoulement claim on 16 April 2012. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The applicant also claimed that the police was looking for him because of an incident in late 2010.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 30 December 2014 (“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.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 23 July 2015, the Board dismissed the appeal from the Director’s first Decision on 21 December 2016.

6.  By a Notice of Further Decision dated 9 February 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him. Despite being invite to do so, the applicant did not provide any additional materials to the Director for his further assessment of the BOR 2 risk.

7.  The Board dismissed the appeal from the Further Decision on 10 November 2017 without an oral hearing.  The Board relied on the reasons set out in the Decision dated 21 December 2016.

8.  At [42] of the Board’s Decision dated 21 December 2016, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [19]-[21] that internal relocation would be viable for him to avoid the threats from members of the opposing political party.

The judge’s decision

9.  The applicant filed a Form 86 on 1 December 2017 which contained no ground for seeking relief.

10.  In the affirmation in support of the leave application dated 1 December 2017, the applicant said that he was at risks from his enemies who were well-connected.

11.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

12.  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 [9] to [11] of the CALL-1 Form:

“9. There were no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

10. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and reasonable.

11.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Grounds for appeal

13.  In the Notice of Appeal filed on 21 December 2018 the applicant provided the following ground of appeal:

“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.”

14.  The applicant agreed by a letter of 7 January 2019 that the appeal could be heard by two judges.

15.  The applicant failed to comply with the direction made by this court on 22 January 2019 requiring him to lodge skeleton submissions not less than 28 days before the hearing, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

16.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  Compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  Skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  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.

17.  The hearing date on 17 April 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

18.  The grounds of appeal relied upon by the applicant are all directed against the decision of the Board.  They fail to identify any error on the part of the judge.  As this court has repeatedly stated, an appeal is not an occasion for a further consideration of the application for judicial review, and it is essential for the applicant to identify some error on the part of the court below that calls for the intervention of this court.  The applicant has clearly failed to do so here.  The grounds of appeal also raise matters that are mentioned for the first time on appeal, which were not raised in the judicial review proceedings in the CFI – it is now far too late for the applicant to seek to rely on such matters.  Moreover, the grounds relied on are vague and unparticularised and do not identify any particular errors on the part of the Board, and thus would not have assisted the applicant even if they had been raised in the court below.

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