RE MOHAMMED ISRAIL

CACV 381/2019

[2019] HKCA 1370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 381 OF 2019

(ON APPEAL FROM HCAL NO. 766 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 23 July 2019 refusing to grant his application for leave to apply for judicial review.  According to the applicant’s Form 86, the intended judicial review is against a decision dated 19 September 2017 dismissing his appeal made by the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”).  

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 5 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 failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we will determine this appeal on paper based on the available materials.

5.  The applicant is an Indian national.  He travelled frequently to Hong Kong between 2002 and 2005.  After his last entry into Hong Kong on 8 August 2005, he overstayed, and was arrested by the police on 1 June 2007.  On 19 June 2007 he filed a torture claim, which was rejected by the Director of Immigration (“the Director”) on 28 October 2011.  As a result of his failure to report to the Immigration Department as required, he was arrested on 24 January 2015.  He made a non-refoulement claim on 26 January 2015, and on 8 June 2017, submitted a supplementary claim form, relying on all the applicable grounds, except the torture risk ground. 

6.  The applicant’s claim is based on his fear of being harmed or killed by his creditor Firoz Khan (“FK”) for failing to repay his loan.  The applicant’s claim was set out in details in [10] of the Director’s decision, and summarised by the Judge in [5] of the Form CALL-l dated 23 July 2019, [2019] HKCFI 1615.  In gist, the applicant said that in January 2005, he borrowed a loan for his business from FK, who was a rich businessman affiliated with the National Congress Party (“NCP”).  His business did not perform well and he could not repay FK.  Two henchmen sent by FK threatened to beat up the applicant if he failed to repay the loan.  The incident was reported to the police, but the police did not take any action.  He went into hiding and after his family was threatened, he felt it was unsafe to stay in India and left for Hong Kong on 7 August 2005.

7.  By a decision dated 28 August 2017, the Director rejected the applicant’s claim having regard to the BOR 2 risk[1], BOR 3 risk^[2], and persecution risk^[3] grounds.  

8.  On 11 September 2017, the applicant lodged a petition to appeal the Director’s decision.  The Board heard the appeal on 2 August 2018.  By a decision dated 21 September 2018, the Board dismissed the appeal.  The Board found the applicant’s evidence incredible and did not accept his claim that he had borrowed a loan and he and his family were threatened or harmed by KF and his men.  The Board also observed that over 13 years have passed, and it was the applicant’s evidence that KF had stopped sending people to his parent’s home to demand repayment.  The Board concluded that the applicant failed to show he would face real risks of harm on returned to his home country.

9.  On 16 October 2017, prior to the Board hearing the appeal, the applicant filed a Form 86 together with a supporting affirmation seeking leave to apply for judicial review.  According to the Form 86, the decision in respect of which relief is sought is the decision dated 19 September 2017 dismissing the applicant’s appeal made by the Board.  In the supporting affirmation, the applicant stated the following:

“I want to apply the rights of my judicial review against the Director of Immigration Department. They are very fast and without complete read my case the immigration has lean (sic) refused my case. I have kindly request to judicial review appeal court. Please see my case again it is the matter of my life between dieth (sic). Please help me to save my life.”

10.  As the Board had not yet heard the appeal against the Director’s decision when the Form 86 and the supporting affirmation were filed, the decision stated in the Form 86 could not be the Board’s decision dated 21 September 2018.  The Judge was aware of this and dealt with it in [3] and [4] of the Form CALL-1 as follows:

“3. The applicant filed a petition/appeal to the torture claims appeal board (“the TCAB”) on 11 September 2017.  He attended a hearing on 2 August 2018 and the adjudicator of the TCAB rejected his appeal/petition on 21 September 2018.  He filed a notice of application for leave to apply for judicial review on 16 October 2017 against both the Director and the TCAB and did not request an oral hearing.  This was filed almost a year before the TCAB decision.

4. In February 2019, this court wrote to the applicant asking him to state clearly the decision which he intended to review and to file any further documents he wished to rely on in support of his application or any further submissions.  On 4 March 2019, the applicant filed a 2nd affirmation but it did not contain any grounds to support his application for leave to apply for judicial review.  He only annexed the decision of the adjudicator, the Director and an up-to-date correspondence address.  I will consider the applicant’s application on the papers and will consider the TCAB the proposed respondent.”

11.  It would appear that the Judge had overlooked that among the exhibits to the applicant’s second affirmation filed on 4 March 2019 was a letter dated 19 September 2017 from the Director to the applicant.  The letter did not contain any decision; it only enclosed copies of the applicant’s non-refoulement form, supplementary form and records of his two screening interviews.  Reading the applicant’s first supporting affirmation together with the Form 86 and also his second affirmation, it is tolerably clear that the applicant was intending to judicially review the Director’s decision rejecting his non-refoulement claim, and he mistakenly took the date of the letter from the Director (i.e. 19 September 2017) as the date of the decision.

12.  The Judge considered the intended judicial review was not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review.  She gave her reasons at [10] to [13] of the Form CALL-1 as follows:

“10. The applicant has in his Form 86 proposed the respondents to be the Director and the TCAB, even though at that time the TCAB had not yet heard or considered his appeal/petition. However, the TCAB has now and it is that decision that I will consider. I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB. Anyway, the TCAB looks at it to ensure no errors as it treated his appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the director as well unless in very specific circumstances. Those circumstances do not arise here.

11. The supporting affirmation does not set out any grounds against the TCAB. The only ground is against the Director and that is the decision was made very fast and without properly reviewing his claim, the director refused his application.

12. In any event, I have considered with rigorous examination and anxious scrutiny the papers of this application and the decision of the TCAB. I find the adjudicator’s decision to be without fault. She meticulously analysed the applicant’s evidence, inconsistencies and discrepancies. She gave full reasons for her finding that the applicant was not a genuine claimant. I will not interfere with that decision. I do not find any error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The applicant was given many opportunities to clarify his evidence. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. In fact, the same applies to the decision of the Director.

13. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

13.  The applicant filed a notice of appeal on 16 August 2019, in which he put forward the following as his grounds of appeal:

(1)  The Judge failed to show good cause for dismissing the applicant’s application.  The Judge stated she did not see any error of law, but the applicant was not represented by lawyer at the hearing before the Board. Without a lawyer, the applicant would not be able to find error of law.

(2)  The Judge found there was no procedural fault; however, the screening system was faulty.  The best way is not to just ask some questions, but to put the refugees in a camp.  The fake refugees would go home and only the genuine refugees would stay behind. 

(3)  The Board acted like the applicant’s enemy who was setting out to find fault with him.  It was unable to give a neutral decision.   

14.  In our view, the intended review is bound to fail.  By the time the Form 86 was filed, the applicant’s appeal against the Director’s decision had not yet been heard.  He should not have taken out an application for judicial review in parallel, and before the outcome of the appeal to the Board was known.  Even if the Form 86 was intended to be against the Board’s decision, it would still be premature since the appeal to the Board had yet to be heard and determined.  For these reasons alone, this appeal must be dismissed.

15.  In the circumstances, it is not necessary to consider the grounds of appeal put forward in the notice of appeal.  We need only point out that they are not viable grounds of appeal.  The Court’s focus in a judicial review application is the legality, procedural regularity and fairness of the Board’s decision and the process by which it was arrived at.  It is therefore incumbent on the applicant to identify specific errors or instances of procedural irregularity or unfairness.

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