RE SUMANGEN MABINI CASOGAY

CACV 56/2024, [2026] HKCA 1415

On appeal from [2024] HKCFI 318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 56 OF 2024

(ON APPEAL FROM HCAL 1308 OF 2019)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 8 February 2024 refusing leave to the applicant 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 (“the Board”) dated 20 March 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 June 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines. He entered Hong Kong on 18 August 2014 as a visitor, but had overstayed and surrendered to the Immigration Department on 29 February 2016. He thereafter lodged a non-refoulement claim by way of written submissions dated 30 August 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by the father of Venus Somali and his stepmother Mariano. The details of the applicant’s claim have been summarised by the Board at [22] to [46] of the Board’s Decision.

4.  By a Notice of Decision dated 14 June 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3] and the torture risk[4].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 14 January 2019. The Board found, inter alia, that although Mariano had assaulted the applicant on several occasions, they were not of a serious nature and that the ill treatment did not reach a minimum level of severity. Further, suitable options of internal relocation within the Philippines were available to the applicant to minimise or reduce the risk of harm, if any.

6.  Accordingly, the applicant’s appeal was dismissed by the Board’s Decision.

The Judge’s decision

7.  The applicant filed a Form 86 on 15 May 2019 seeking to judicially review the Board’s Decision but did not set out any grounds for review.

8.  In his supporting affidavit filed on the same day, the applicant stated that he sought to ‘reverse’ the Board’s Decision, again without setting out any grounds.

9.  At the hearing before the Judge, the applicant submitted that notwithstanding the problems in his country, he would like to return (see [3] of the CALL-1 Form[5]). The applicant also applied, at the hearing, for a dismissal of his leave application.

10.  Upon the said application, the Judge gave the following reasons in refusing leave to apply for judicial review at [3] to [6] of the CALL-1 Form:

“3. Before me, the applicant said that despite his problems in his country, he wanted to return to his country. He therefore asked the Court to dismiss his application so that he may go home.

4. There is nothing left in this action if the applicant’s application is dismissed.

5. In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

‘(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.’

6.   In the circumstances, upon the applicant’s request, I dismiss his application.”

Grounds for appeal

11.  In the Notice of Appeal filed on 15 February 2024, the applicant stated that he disagreed with the “decision maker authorities and decision made by [the Director] as well as [the Board]”. He did not however, set out any grounds of appeal.

12.  In breach of paragraph 5 of the directions given by the Registrar of Civil Appeals on 11 April 2024, the applicants failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 6 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

13.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1. The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants. Non-compliance 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 a 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 is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 28 May 2024 was therefore vacated and the applicant was debarred from lodging any written submissions. We will deal with the appeal on paper on the basis of the materials already filed with the court.

15.  For completeness, before the handing down of this judgment, the applicant, on 6 January 2025, taking yet another change in stance, filed a Request for Dismissal of Appeal (“Request for Dismissal”).

Discussion

16.  The manner in which the applicant has prosecuted these proceedings is regrettable.

17.  Notwithstanding the applicant’s own application for dismissal of the leave application before the Judge, for reasons unknown and unexplained, he is now seeking to appeal against the Judge’s decision. Moreover, his latest stance, by reason of the latest Request for Dismissal, is again for the appeal (and consequently his claim) to be dismissed.

18.  The applicant’s application for leave to apply for judicial review was dismissed upon his own application for withdrawal of the same. It is clearly an abuse of process of the court for the applicant to complain of, and seek to appeal against, the Judge’s dismissal of the very application he himself had applied to withdraw. The intended appeal is thus in our view hopeless and utterly devoid of merit.

19.  In any event, the applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening. The applicant has wholly failed to do so.

20.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

21.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

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