RE ROMAIL

CACV 274/2017

[2018] HKCA 186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 274 OF 2017

(ON APPEAL FROM HCAL NO 248 OF 2017)

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JUDGMENT

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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 Woodcock on 24 November 2017­ refusing leave to the applicant to apply for judicial review. The applicant came from Pakistan to Hong Kong illegally by boat on 11 February 2009. He was arrested on 4 August 2009. On 7 August 2009, he lodged a torture claim which was later converted to a non-refoulement claim. The claim was based on alleged threat to his life from the Taliban. According to the applicant, he was a trained member of the Taliban. He quit before the Taliban were to send him on a mission. He said he received a phone call stating that he would be killed if he did not complete the mission.

2.  The Director decided against the claim on 22 July 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 7 November 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 12 December 2016, the Board dismissed the appeals on 5 May 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Board Decision only.  The Form 86 filed by the applicant on 29 May 2017 did not give any ground for judicial review.  In his affirmation of 29 May 2017 (erroneously dated 29 May 2016), he did not state any ground.  He only attached the letter from the Board dated 5 May 2017 (which enclosed the Board decision) to his affirmation.

5.  The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Board, she gave the following reasons in refusing leave at [14] to [15] of the CALL-1 Form of 24 November 2017:

“ 14. I have considered with rigourous examination and anxious scrutiny the papers of this application. There are no grounds put forward by the applicant to consider. Nonetheless, I have made sure that the Director has applied the correct burden and standard of proof, made no errors of law and satisfied the enhanced Wednesbury test. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.

15. The decision of the adjudicator is in fact very concise, detailed and thorough.  I see no reason to consider leave for judicial review.  Leave is refused.”

6.  In the notice of appeal of 30 November 2017, the applicant set out the grounds as below:

(1) If the Board “sought to challenge the applicant’s credibility, a fair oral hearing was warranted in order to satisfy the tribunal’s obligation of procedural fairness”;

(2) The adjudicator took account of irrelevant considerations in assessing the applicant’s claim.

7.  The applicant also attached a number of news article to the notice of appeal.  They are new evidence which was not filed in the Court below.  As held by this Court in Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, the rule in Ladd v Marshall limiting the circumstances under which fresh evidence can be admitted on appeal is generally applicable in an appeal of this nature though the Court may relax it if there are exceptional circumstances warranting the same.  We have read those articles but we do not consider them taking the applicant’s case further.  We refuse to admit them as evidence for this appeal.

8.  The applicant did not comply with the direction made by the Registrar of Civil Appeals on 25 January 2018 in that he failed to lodge any skeleton argument before the hearing of the appeal.

9.  We heard the appeal on 23 March 2018. 

10.  Having considered the submissions of the applicant in light of the materials before us, we found the judge’s observations to be justified.

11.  The purported grounds of appeal were not stated in the Form 86.  For Ground (1), the applicant did in fact attend the hearing of the Board on 12 December 2016.  He also gave evidence in that hearing (§195 of the Board Decision).  We see no basis for questioning the fairness of the proceedings before the Board.  This ground has no merit. 

12.  For Ground (2), the applicant did not give any particulars as to the “irrelevant consideration” that was taken into consideration by the Board.  Having read the Board Decision, we cannot discern any irrelevant consideration.   

13.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

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