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CACV 408/2018
[2019] HKCA 191
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 408 OF 2018
(ON APPEAL FROM HCAL 774/2017)
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| RE: |
EJIKE EMMANUEL SUNDAY |
Applicant |
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| Before: |
Hon Chu, Barma and McWalters JJA in Court |
| Date of Judgment: |
26 February 2019 |
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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 10 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 29 September 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 26 April 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Nigeria. He entered Hong Kong on 12 September 2014 as a visitor. He overstayed and surrendered to the Immigration Department on 13 March 2015. He lodged a non-refoulement claim on 24 April 2015.
3. The applicant’s claim was based on threats from a man identified as Alhagi who has a financial dispute with the family of the applicant. The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.
4. By a Notice of Decision dated 26 April 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 12 September 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 29 September 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection. At [106] of the Board’s Decision, the Board found that the applicant’s case was not credible.
The judge’s decision
6. The applicant filed a Form 86 on 17 October 2017 which contained no ground for seeking relief. In the affirmation in support of the leave application dated 17 October 2017, the applicant only exhibited the relevant documents without giving any ground for judicial review.
7. The applicant did not request an oral hearing before the judge, who thus dealt with the application on paper.
8. 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 [11] to [13] of the CALL-1 Form:
“11. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
12. 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 Director and 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 their determinations, which were open to them on the facts and eminently reasonable.
13. 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
9. In the Notice of Appeal dated 21 August 2018 the applicant contended that:
“… the Plaintiff will face hardship if he is to return back to his home country and that the [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.”
10. 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.
11. 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.
12. 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
13. The ground stated in the Notice of Appeal is concerned only with alleged errors committed by the Board. It does not identify any error in the judge’s decision, and thus is not a viable ground of appeal.
14. Further, this was not a ground relied upon before the judge, and is therefore not a matter that can be raised on appeal, since permitting this would be tantamount to disregarding the time limits for bringing judicial review proceedings.
15. Additionally, as this court has frequently stated, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal. The first point made by the applicant simply expresses his disagreement with the findings of the Board, which is the primary fact finder, and identifies no public law error in its decision or decision making process. The other complaints are all vague and unparticularised and cannot assist the applicant.
16. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Carlye Chu) |
(Aarif Barma) |
(Ian McWalters) |
Justice of Appeal
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Justice of Appeal
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Justice of Appeal
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The applicant acting in person
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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