RE BHAUYA MOHAMMAD SATTAR

CACV 348/2018

[2018] HKCA 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 348 OF 2018

(ON APPEAL FROM HCAL NO. 694 of 2017)

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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 Woodcock (“the Judge”) given on 17 July 2018 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 9 June 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 27 January 2016 and 13 December 2016 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 14 December 2018.  The applicant was directed to lodge a skeleton argument by 16 November 2018 and also warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning was communicated to the applicant in the Notice of Hearing dated 31 October 2018.

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 a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 17 May 2013.  He made a non-refoulement protection claim based on his fear of being harmed or killed by supporters of the Awami League (“AL”) because he was a supporter of the Bangladesh Nationalist Party (“BNP”) and had injured a leader of AL. 

5.  The applicant’s case was set out in details in the decisions of the Director and the Board, and summarised by the Judge in [6] to [12] of the Form CALL-1 dated 17 July 2018, [2018] HKCFI 1539.  It is not necessary to repeat it here.

6.  By two decisions dated 27 January and 13 December 2016, the Director rejected the applicant’s claim.  The first decision covered the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3] grounds, and the second decision was an assessment of the BOR 2 risk^[4].

7.  The Board heard the applicant’s appeal against the Director’s decisions on 19 January 2017.  By its decision dated 9 June 2017, the Board dismissed the appeal.    

8.  On 28 September 2017, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. As requested by the applicant, an oral hearing was held on 27 February 2018 to hear the leave application.

9.  The applicant’s application for leave to apply judicial review was out of time, being more than three months from the date of the Board’s decision[5].  The applicant did not apply for an extension of time, nor did he give any explanation for the delay in his affirmation.  At the hearing before the Judge, he said he was not aware his application was late as he relied on his friend to do the application. 

10.  Having considered the applicable legal principles, the Judge refused to extend the time for making the application and dismissed the application for leave to apply for judicial review.  The Judge gave her reasons in [4] and [5] of the Form CALL-1.  The Judge nevertheless went on to consider the merits of the applicant’s application and concluded that the intended judicial review had no prospect of success.  The Judge’s analysis of, and reasons for, rejecting the grounds of judicial review, were set out in [19] to [25] of the Form CALL-1.

11.  The applicant filed a Notice of Appeal together with an affirmation on 27 July 2018.  His affirmation raised two grounds of appeal, namely, (1) the Judge was wrong in law to hold that there was no state acquiescence or involvement; and (2) the Judge failed to provide detailed reasons to support her decision.  There is also an exhibit A to the applicant’s affirmation, which gave an account of the applicant’s case and the relevant law as well as setting out nine general grounds for judicial review.

12.  Section 14AA of the High Court Ordinance, Cap. 4 provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted.  The Judge’s refusal to extend the time for the applicant to make the application for leave to apply for judicial review is interlocutory in nature: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419.  In accordance with section 14AA, the applicant must first apply to the Judge to seek leave to appeal from her decision before he can put in an appeal in the Court of Appeal.  As he has not applied to the Judge, there is no leave for him to appeal to the Court of Appeal.  This being the case, the present appeal is not validly constituted and has to be dismissed.         

13.  In any event, the grounds of appeal are entirely misplaced.  The Judge did not make any holding on state acquiescence or involvement.  Nor can it be said that the Judge did not give sufficient reasons for her decision.    

14.  For the above reasons, we dismiss the appeal.