RE MOHAMMED IRSHAD

CACV 210/2020

[2020] HKCA 906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 210 OF 2020

(ON APPEAL FROM HCAL NO. 1713 of 2018)

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J U D G M E N T

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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 Lung (“the Judge”) given on 17 June 2020 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 August 2018 dismissing the applicant’s appeals against the decision of the Director of Immigration (“the Director”) dated 18 September 2017 rejecting his non-refoulement claim.    

2.  The applicant’s appeal was scheduled to be heard on 9 November 2020.  The applicant was directed to lodge his written skeleton argument by 12 October 2020 and further warned that if he failed to do so, he shall be deemed to have waived his right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 25 August 2020 and the Notice of Hearing dated 7 September 2020. 

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 an Indian national.  He arrived into Hong Kong on 31 July 2016 and was given permission to remain as a visitor until 14 August 2016.  He overstayed.  On 15 August 2016, he surrendered to the Immigration Department and raised a non-refoulement claim.

5.  The applicant’s claim is based on his fear of being harmed or killed by his father-in-law and brother-in-law because he and his wife married without their consent and they had different religious beliefs. The applicant’s case was set out in detail in the Director’s decision and also the Board’s decision.    

6.  In gist, the applicant stated that he met his wife in 2007 and started dating in 2008.  While he is a Muslim, she was a Hindu.  On 12 November 2015, they were married by a Muslim priest and registered the marriage without letting the family of the applicant’s wife know.  After her family found out the marriage, they made a report of kidnapping to the police.  To avoid the police and the wife’s family, the applicant and his wife went into hiding.  The applicant’s father-in-law and brother-in-law constantly telephoned the applicant, threatening to kill him if he did not bring his wife back to them.  In about April 2016, the applicant was attacked by his brother-in-law and his men, and sustained serious injuries.  A few days later, his wife was abducted by her brother, but she managed to escape.  Then one day in May 2016, the applicant returned home from work to find his wife was dead.  His brother-in-law told the applicant that he did what was necessary to save the honour of the family and warned that he would be the next victim.  The applicant went to make a report to the police but to no avail.  Fearing for his personal safety, the applicant left his country for mainland China from where he came to Hong Kong.   

7.  By a Notice of Decision dated 18 September 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].   

8.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 15 May 2018, during which the applicant had answered questions put by the Board.  By its decision dated 9 August 2018, the Board dismissed the appeal.  In short, the Board found the applicant untruthful and that he has fabricated his claim in an attempt to extend his stay in Hong Kong.  The Board did not accept the applicant would be at risk of any harm if he were to return to his country and rejected his claim in total.          

9.  The applicant filed his Form 86 together with a supporting affirmation on 22 August 2018 to seek leave to apply for judicial review against the decision of the Board.  Neither the Form 86 nor the supporting affirmation set out any ground for seeking relief.      

10.  The Judge heard the application at an oral hearing held on 21 January 2020 to hear the application.  By his decision of 17 June 2020, the Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success.  He gave his reasons given at [14] to [16] of the Form CALL-1 ([2020] HKCFI  1206) as follows:

“14.  The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decision to him and the interpreter of the Board had explained the Board’s Decision to him. He did not understand why the Adjudicator did not believe his evidence.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.”  

11.  In the Notice of Appeal filed on 22 June 2020, the applicant stated the following as his grounds of appeal:

“In the matter of Order 53 rule 3, that it is ordered the leave to apply for Judicial Review be refused. I would like to appeal again in Your Honour’s Court that I don’t want to go back [to] my country because [I am] in danger in my country.”

12.  These do not constitute viable grounds of appeal.  The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].

13.  In the present case, the applicant has not identified any error in the Judge’s decision and reasons.  In light of the Board’s finding that he had fabricated his claim, the applicant’s assertion that he would be in danger if refouled to his home country cannot stand.  We have also considered the papers and the Judge’s decision, we do not discern any proper basis to interfere with the Judge’s refusal to grant leave to apply for judicial review.

14.  For the above reasons, the appeal has no merits.  Accordingly, we dismiss the appeal.