RE ALAM MOHAMMAD NAZIR

CACV 153/2018

[2018] HKCA 558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 153 OF 2018

(ON APPEAL FROM HCAL 835/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 27 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of India. On 7 April 2014, he entered Hong Kong as a visitor. He was arrested by the police for overstaying and was referred to the Immigration Department on 7 May 2014. On 8 May 2014 he lodged a torture claim (processed subsequently as a non-refoulement claim).

2.  His claim is based on a land dispute with his aunt and uncle.  He alleged that in March 2014 his uncle (“NS”) attacked him on the street.  Several days later NS approached the applicant and threatened to kill him.  The applicant then fled to Hong Kong.

3.  The Director decided against the claims on 11 September 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director’s Decision”).  The applicant appealed to the Torture Claims Appeal Board.  The Board held a hearing on 31 August 2016. 

4.  By a Further Decision of 30 June 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

5.  The Board was aware of the Further Decision.  On 22 September 2017, the Board dismissed the appeals on all applicable grounds (including BOR2 risk) (“Board’s Decision”).

6.  The intended judicial review was in respect of the Board’s Decision only.  The Form 86 filed by the applicant on 2 November 2017 did not contain any ground for judicial review.

7.  In his affirmation dated 2 November 2017, the applicant gave the following grounds for judicial review:

(a)  failure on the part of the Director and the Board to properly consider his fear which led to his claim;

(b)  failure on the part of the Director and the Board to properly consider the supporting documents produced by the applicant as to the severity of the threats from his aunt and uncle when assessing his claim; and

(c)  failure on the part of the Director and the Board to conduct sufficient and independent inquiry into the relevant COI with critical analysis, for being selective in their reliance of such COI, and for failing to give proper explanation or reasons for their conclusion.

8.  The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [12] to [16] of the CALL-1 Form of 27 April 2018:

“ 12. The first ground is without any merit as it is clear that both the Director and the Board did take into proper account of the effect of the threats and assault on the applicant by his aunt and uncle over the land dispute, the fact that the Board found his accounts unreliable is a question of credibility of which the Board has also dealt with fairly and properly based on the facts. I do not find any error of law or procedural unfairness in either of their decision arising from this issue.

13. The same can be said about ground (2) when it is also clear that both the Director and the Board did take into account of the documents produced by the applicant which were essentially related to his mother’s court case over the land dispute, as detailed in paragraph 6.33 of the Director’s decision, and which was never an issue before either the Director or the Board as both clearly accepted in their decisions the facts of the land dispute and the court case, and assessed the applicant’s claim accordingly. Again I do not see any merit in this complaint of the applicant.

14. As for ground (3) of improper, inadequate or selective reliance on COI by the Director and the Board, it is not enough for the applicant to simply make these broad and vague statements without providing any particulars or specifics, in the absence of which I am unable to discern anything amiss arising from their reliance of COI in their assessment of the availability of state protection and internal relocation to the applicant, and on the basis of those COI listed and relied on by both of them, they were certainly entitled to arrive at their conclusion as they did in their decisions, and contrary to what the applicant said under this ground, they did give detailed explanation for their reasons and conclusion, and I do not find any merit in this ground of the applicant either.

15. 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, or any failure on their part to apply high standards of fairness in their assessment and consideration of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

9.  In the notice of appeal of 11 May 2018 the applicant stated the following as his ground for appeal:

“… the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

10.  He filed a supplementary notice of appeal on 6 July 2018.  Apart from setting out the background and history of the case, the additional grounds of appeal (or more accurately new grounds for seeking judicial review, as they were not grounds advanced at the court below) can be summarized as follows:

(1)  The Board did not conduct a fair oral hearing and failed to apply Osborn v The Parole Board [2014] AC 1115;

(2)  The Board did not give proper reasons for the conclusion that the applicant’s experience did not amount to torture and that there were no substantial grounds that he would be subject to torture if he returns to India;

(3)  The Board has considered unofficial, outdated and unreliable COI material.

11.  The Court made an unless order on 12 July 2018 directing that the applicant should lodge skeleton submission on or before 1 August 2018.  The applicant did not lodge any skeleton submission.  In the circumstances, the applicant waived his right to an oral hearing.  

12.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The Practice Direction is equally applicable to litigants in person as well as those legally represented, see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451.  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 by the judges and the litigants.

13.  The failure to lodge skeleton submissions substantially impairs the exercise of case management power of the presiding judge at an appeal, including the effective management of the oral hearing. This is particularly true in cases where a litigant acted in person as many such litigants do not have proper understanding of the appeal process and have the tendency of repeating their versions of events instead of focusing on the alleged mistakes of the judge below. 

14.  In view of the heavy demand on the court’s time due to large volume of appeals, this Court cannot afford to permit unfocused and ill-prepared oral presentation of material at an oral hearing.  In recent times the 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. 

15.  The hearing date of 15 August 2018 was vacated in accordance with the unless order of 12 July 2018.  We proceed to process the appeal on the papers based on the materials already lodged by the applicant.

16.  Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations in light of the finding by the Board against the applicant on credibility at paragraphs 19 to 21 of its decision.  Though one may question the line of reasoning at paragraph 21, the assessment at paragraph 19 cannot be faulted.  The Board also explained at paragraphs 22 to 25 its assessment that the fear of ill-treatment of the applicant was unlikely to materialize.  At paragraph 38, the Board also found that there was no substantial ground for believing that the applicant would be in danger.  These assessments are primarily in the province of the Board and it is not the function of the Court in a judicial review to re-assess the same.  This is sufficient to dispose of the grounds in the original notice of appeal and the additional ground (2) of the additional grounds of appeal.

17.  [14] of the judgment below also sufficiently addresses the additional ground (3).  The applicant did not provide any particulars on the COI he sought to challenge.  An application for leave for judicial review is not a rehearing.  It is incumbent on the applicant to identify the error committed by the Board.  The judge should not usurp the role of the Board to conduct a fresh assessment of the COI when the applicant could not pinpoint a public law error by reference to the specific parts of the COI under challenge, 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. 

18.  As regards the new ground (1), the Board had held a hearing on 31 August 2016 though the applicant chose not to give evidence at the hearing, see paragraph 2 of the Board’s Decision.  However, that hearing could not have covered BOR2 risk as it was not until 30 June 2017 that the Director handed down the Further Decision on BOR2 risk.  Without hearing the applicant’s submissions on BOR2 risk, the Board dismissed the applicant’s claim based on BOR2 risk. 

19.  The applicant did not include this ground in the Form 86.  An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below.  This is equally apposite in an appeal against the refusal of leave.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53 Rule 4(1) of the Rules of the High Court, see: Re Qadir Sher [2018] HKCA 160; Re Daljit Singh [2018] HKCA 328; Re Zunariyah [2018] HKCA 14.

20.  In ST v Betty Kwan [2014] 4 HKLRD 277, this Court laid down the principles on whether the Board is required to hold an oral hearing.  Among other authorities, the Court considered Osborn v Parole Board at [32]-[36].  The Court held at [54] that the requirement to have an oral hearing ultimately depends on the assessment of fairness.

21.  Applying ST to the present case, the Board has already heard the applicant on all grounds except BOR2 risk in the hearing on 31 August 2016.  As noted by the Board at §49, the applicant did not submit any document on BOR2 risk to the Director.  There was no suggestion from the applicant that if he were given an oral hearing before the Board, he would have supplied further document or information.  The applicant failed to demonstrate that an additional hearing before the Board for BOR2 risk would provide any real benefit.  There is nothing to suggest that the applicant suffered any real prejudice from the lack of an additional hearing.  The situation is analogous to the case of Re Gurjant Singh [2018] HKCA 467. The only difference is that there was a second petition to the Board after the further decision by the Director on BOR 2 risk.  In the present case, there was none.

22.  Technically, it may be said that in the absence of a second petition, the Board does not have jurisdiction to entertain BOR 2 risk in the context of the petition before it.  This argument cannot assist the applicant because even assuming that analysis to be correct, the net effect is that the Further Decision of the Director remains to be the effective one (see Re Monjur Hossain [2018] HKCA 476) and there is no application for judicial review in respect of the Further Decision.  Any attempt to lodge such an application for judicial review would be grossly out of time.

23.  In any event, on the materials presented so far, we do not see any scope for finding in favour of the applicant on BOR 2 when his other claims were duly rejected.

24.  Thus the new ground (1) has no merit and we do not give leave for this ground to be relied upon belatedly.

25.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.