RE SHAIKH SHAMIM

CACV 373/2019

[2019] HKCA 1371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 373 OF 2019

(ON APPEAL FROM HCAL NO. 559 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 Bruno Chan (“the Judge”) given on 2 August 2019 refusing to grant his application for leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 14 November 2017 refusing his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 22 March 2018 dismissing his appeal against the Director’s decision.

2.  The appeal was listed for hearing on 3 December 2019.  The applicant was directed to lodge two sets of skeleton argument on or before 5 November 2019 and also warned that if he failed to do so, he would be deemed to have abandoned 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 were communicated to the applicant by letter dated 4 September 2019 and the Notice of Hearing dated 14 October 2019.

3.  The requirement for lodging skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is essential 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. 

4.  In the present case, as the applicant had failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have proceeded to determine this appeal on paper based on the available materials. 

5.  On 6 December 2019, the applicant wrote to the Court saying he had not received the Court’s letter due to unknown reasons.  He also asked for an extension of 2-3 days to provide the written submission and for an oral hearing for his appeal.  As the applicant has not been able to explain why the notice of hearing, which was mailed to the address he provided to the Court and had not been returned undelivered, did not reach him, the request to re-list the appeal for an oral hearing was refused.  The Court, however, granted the applicant an extension of time to lodge his written submission.  On 9 December 2019, the applicant put in his written submission.  

6.  The applicant is an Indian national.  He entered into Hong Kong as a visitor on 29 November 2014 as a visitor and was permitted to stay until 13 December 2014.  He overstayed and was arrested by the police on 9 February 2015.  He lodged a non-refoulement claim on 10 February 2015 based on his fear that if he were to return to India, he would be harmed or killed by his creditor, Sunny, and his men. 

7.  The applicant’s claim was set out in details in [6] of the Director’s decision, and summarised by the Judge in [2] to [7] of the Form CALL-l dated 2 August 2019, [2019] HKCFI 1937.  In gist, the applicant said in about mid-2011, he borrowed 2 million Indian rupees from Sunny, who was his childhood friend, to start his own business.  Since about 2014, the applicant experienced cash flow problem and could not keep up with his repayment.  Sunny demanded for repayment, and on one occasion slapped the applicant.  Thereafter the applicant avoided Sunny by staying at his aunt’s place and refused to answer his telephone calls.  About one month later, the applicant was assaulted by Sunny and several men with hockey sticks, and locked in a room for three days.  He was warned he would be killed if he failed to repay his loan.  The applicant did not report the attack to the police because he believed Sunny had influence over them. He came to Hong Kong for several days to see his friends to solicit business opportunity.  Several days after he returned to India, he ran into Sunny and his men carrying knives and choppers.  He ran away and went into hiding and then left for Hong Kong again.

8.  By the decision dated 14 November 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] grounds.  

9.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 15 March 2018.  The applicant, who was assisted by a Hindi interpreter, chose not to give evidence or to answer any questions at the hearing.  By its decision dated 22 March 2018, the Board dismissed the appeal. For the reasons set out in [25] to [51] of the decision, the Board had concerns over the credibility of the applicant and his claim, and further found that he had failed to establish that he faced real risks of harm that warrant non-refoulement protection.  The Board concluded that the applicant had failed to establish his case on all applicable grounds.

10.  The applicant filed a Form 86 together with a supporting affirmation on 4 April 2018 seeking leave to apply for judicial review against the decisions of the Director and the Board.  In his supporting affirmation, he advanced the following grounds for seeking relief:

(1) The Director and the Board were wrong in their assessment of his non-refoulement claim.

(2) The Director’s and the Board’s decisions were Wednesbury unreasonable and unfair.

(3) The Director and the Board failed to consider the right to life, and that he might face extra-judicial killings if he were refouled to India.

(4) The Board failed to give the applicant sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim and appeal.  

11.  At the applicant’s request, the Judge heard the leave application at a hearing held on 24 April 2019.  The Judge considered the intended judicial review not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review.  He gave his reasons at [15] to [20] of the Form CALL-1 as follows:

“15. A careful examination of his grounds however reveals that they are all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence in support of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness being clearly and properly identified in the decisions by the applicant, I do not find any basis or merits in any of his complaints, nor do I find any of them reasonably arguable for his intended challenge.

16. As has been repeatedly emphasized by the Court of Appeal, 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.

17. In the present case, the applicant declined the opportunity to give evidence or to answer questions from the Board in order to substantiate and clarify his claim despite the adjudicator’s advice and invitation for him to do so, and as such the Board was entitled to, as it did in its decision, reject his claim on the basis of the materials available to it on its adverse finding as to his credibility, and in the absence of any legal error or procedural unfairness in the Board’s decision being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge such findings of the Board.

18. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also affirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19. 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.

20. 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.”

12.  The applicant filed a notice of appeal on 12 August 2019, which stated:

“The grounds of this appeal are that the gravity of my circumstances have [not] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

13.  In his written submission, the applicant referred to several decisions on the high standard of fairness and the principle of Wednesbury unreasonableness.  He submitted that as the decision has the effect of finally disposing of his claim, the high standard of fairness should apply.  He further submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility. 

14.  What was stated in the notice of appeal and the written submission do not constitute viable grounds of appeal.  Critically, the applicant has not identified any errors in the Judge’s decision or reasons.  In an appeal to the Court of Appeal, the focus is on the correctness of the decision of the judge below.  The Court of Appeal will only interfere with the decision of the first instance court if an appellant can demonstrate that the judge made errors of law, failed to take account of relevant matters already placed before the judge or was otherwise plainly wrong.  In the present case, the complaints made by the applicant were directed at the Director and the Board, but none against the Judge.  

15.  Further, we do not accept that the applicant was not given sufficient time or opportunity to plead his case properly.  He never raised with the Board that he needed more time to gather supporting materials.  He further elected not to give evidence or to answer questions of the Board at the hearing before the Board.  In any case, at the hearing before the Judge, the applicant also did not make further representation or submission, though he was offered the opportunity to do so.  Like the Judge, we also do not discern any proper basis to interfere with the Board’s conclusion that the applicant failed to establish that he would face real risks of harm if he were to return to his home country.

16.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.