RE MD NASIM AKHTAR

CACV 49/2020

[2020] HKCA 686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 49 OF 2020

(ON APPEAL FROM HCAL NO. 2434 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 20 January 2020 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 22 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 January 2018 rejecting his non-refoulement claim.    

2.  The applicant’s appeal was scheduled to be heard on 10 August 2020.  The applicant was directed to lodge his written skeleton argument by 13 July 2020 and further warned that if he failed to do so, he shall be deemed to have waived his right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 22 May 2020 and the Notice of Hearing dated 19 June 2020. 

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by 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.  In the present case, as the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.      

4.  The applicant is an Indian national.  He arrived into Hong Kong on 17 January 2016 and was given permission to remain as a visitor until 31 January 2016.  He did not depart and surrendered to the Immigration Department on 1 February 2016.  On 31 May 2016, he made a written claim for non-refoulement protection.

5.  The applicant’s claim is based on his fear of being harmed or killed by his creditor named Akhter Hussain (“Akhter”) because he could not repay his debt, and also his business partner named Parvez Alam (“Parvez”) with whom he had a money dispute.  The applicant’s case was set out in detail in [6] of the Director’s decision and also [6] to [29] of the Board’s decision.    

6.  In gist, the applicant claimed he owed money to Akhter, who was his friend and a money lender, but could not repay because he was cheated by Parvez.  Both Akhter and Parvez are members of the Trinamool Congress Party, which was the ruling party in the locality where the applicant lived.  After the applicant demanded Parvez to return his money, Parvez sent criminals to attack him. Fearing for his personal safety, the applicant departed for Hong Kong to seek protection.  His family told him that Parvez was still looking for him.   

7.  By a Notice of Decision dated 26 January 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].   

8.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 11 September 2018, during which the applicant answered questions put by the Board.  By its decision dated 22 October 2018, the Board dismissed the appeal.  In short, the Board found there were major problems with the applicant’s evidence and did not accept his claim that he had borrowed money and was pursued or threatened by his creditor or his business partner.  The Board concluded there was no credible evidence to establish that the applicant would be at risk of being harmed in India for the reasons claimed.        

9.  The applicant filed his Form 86 together with a supporting affirmation on 1 November 2018 to seek leave to apply for judicial review against the decision of the Board.  The Form 86 set out a variety of grounds for seeking relief which was summarised by the Judge in the Form CALL-1 dated 20 January 2020, [2020] HKCFI 221 at [10].     

10.  At the applicant’s request, an oral hearing was held on 26 July 2019 to hear the application.  The Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success.  He gave his reasons at [11] to [17] of the Form CALL-1 as follows:

“11. The applicant appeared before me. He confirmed that he was free to tell his stories before the Immigration officer and the Adjudicator. He could read English himself.

12. It is obvious that the Board had, through examination and cross-examination of evidence, found facts of the case and concluded that the factual basis of the case did not support his claim.

13. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings.

14. The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

15. This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

16. I shall deal with his grounds.

17. He has confirmed that he had no problem with the hearing bundle for the appeal as he could read the bundle himself. The fact that the Director decided not to have another screening for BOR 2 risk is entirely at the Director’s discretion under the law. He has no ground to complain the Director’s discretion. All other grounds do not sustain as they are either opinions or he has no reasons to complain.”  

11.  The applicant filed a Notice of Appeal on 9 March 2020 to appeal the Judge’s decision, in which he gave the following as his grounds of appeal:

(1) The Judge was wrong in law to hold that there was no state acquiescence or involvement.

(2) The Judge failed to give detailed reasons for his decision.

(3) The Judge ignored the country condition in making his decision.  

12.  The supporting affirmation repeated what was set out in the Notice of Appeal.

13.  The matters stated in the Notice of Appeal and the affirmation do not constitute arguable grounds of appeal. 

14.  In the first place, the Judge did not refer to the principle of state acquiescence in his reasons.  The first ground of appeal is therefore misplaced.  Second, the Judge had provided adequate reasons for his decision.  There is no basis for the complaint that he did not give detailed reasons.  Third, as the Judge pointed out, the Board rejected the applicant’s case as incredible.  Country condition is therefore irrelevant, and the Judge did not err in not referring to it in his reasons.    

15.  We have considered the papers before us and the reasons given by the Judge.  We do not discern any proper basis to interfere with the refusal to grant leave to apply for judicial review.

16.  For the above reasons, the appeal has no merits.  Accordingly, we dismiss the appeal.