RE MMADUABUCHI AUGUSTIN CHUKWUMA

CACV 511/2020

[2021] HKCA 602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 511 OF 2020

(ON APPEAL FROM HCAL 952/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 15 September 2020 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 (“Board”) dated 19 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 27 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nigeria.  He entered Hong Kong on 20 March 2014 as a visitor and was permitted to remain until 27 March 2014.  He overstayed and surrendered to the authorities on 8 April 2016.  He lodged a non-refoulement claim on 22 August 2016. 

3.  The applicant’s claim was based on threats from his relative arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [1] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 27 February 2017 (“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 to the Torture Claims Appeal Board.  After a hearing on 14 February 2018, the Board dismissed the appeal on 19 April 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [27] of the Board’s Decision, the Board found that the applicant had not made out a case for non-refoulement protection.  The Board considered that he had not been inflicted with severe pain or suffering in the past and that he did not genuinely intend to seek non-refoulement protection.  The Board was also satisfied at [32] that state protection would be available for the applicant and at [52] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 28 May 2018 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 28 May 2018, the applicant exhibited the relevant documents without giving any ground for seeking relief.

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

10.  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 [15] of the CALL-1 Form:

“11. On 28 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely attached copies of the decision and other documents earlier submitted relevant to his claim but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15. 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.  In the Notice of Appeal dated 24 September 2020, the applicant contended that:

“The [judge] have no persona judgment he duly follow [the Director and the Board]. If the judge read my case he would not refused.”

12.  The applicant agreed by a letter of 24 September 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 14 January 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  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.

14.  The hearing date on 26 April 2021 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

15.  The only ground of appeal put forward is that the judge did not independently consider the applicant’s case.  However, as noted above, no grounds for judicial review were provided in the Form 86 nor has the applicant identified or particularised any matter that he says the judge failed to consider in the court below. 

16.  In any event, the Board has held that he was not at risk from any of the proscribed risks of harm and that state protection is available and internal relocation would be viable.  The applicant has failed to substantiate any public law error in the Board’s Decision.

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