RE BERJA AZARIAS AYO

CACV 66/2024, [2026] HKCA 1416

On appeal from [2024] HKCFI 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 66 OF 2024

(ON APPEAL FROM HCAL 1373 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 16 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 16 May 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 October 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of the Philippines. He entered Hong Kong as a visitor on 8 June 2012, but he overstayed and was arrested by the police on 11 August 2012. On 13 August 2012, the applicant lodged a torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”), which was rejected by the Director on 31 October 2012. It appears that the applicant did not subsequently appeal against the dismissal of the CAT Claim.

3.  The applicant subsequently lodged a non-refoulement claim on grounds other than torture by way of a written representation dated 3 December 2013.

4.  The applicant’s claim was based on a fear of being harmed or killed by Benjamin Decena, the former mayor of Bula, as he was the campaign leader of his political opponent during the mayoral elections. The details of the applicant’s claim have been summarised by the Judge at [4] to [9] of his decision (“the CALL-1 Form”)[1].

5.  By the Director’s Decision, the Director decided against the applicant’s claim. The Director’s Decision covered the persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4].

6.  The applicant appealed to the Board. After a hearing on 25 January 2019, the Board dismissed the applicant’s appeal by its Decision. In dismissing his appeal, the Board found that the inconsistencies and fundamental differences between the applicant’s accounts of events as presented to the Director and before the Board rendered his alleged fear of harm incredible.

The Judge’s decision

7.  The applicant filed a Form 86 on 21 May 2019 seeking to judicially review the Board’s Decision, but did not set out any grounds for review. In his supporting affirmation, the applicant merely stated that the “decision made by Immigration Department on [his] case disregard [his] dangerous situation”.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [18] to [23] of the CALL‑1 Form:

“18.   The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.   The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20.   For the reasons given by the Board as set out in paragraph 14, the Board disbelieved the applicant’s evidence and it further found that state protection and internal relocation are viable options for him.

21.   The applicant has raised no valid reason to challenge the Board’s Decision.

22.   There is no reason that the Court should interfere with the Board’s finding of the facts. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.   I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 26 February 2024, the applicant stated that he did not wish to return home, as his life would allegedly still be in danger there.

10.  In breach of paragraph 4 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 5 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

11.  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.

12.  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.

Discussion

13.  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.

14.  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.

15.  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. The Judge considered the decisions of both the Director and the Board and found no basis for intervening. In our view, he was clearly correct to do so.

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