RE AHMAD SARFARAZ

CACV 194/2020

[2021] HKCA 973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 194 OF 2020

(ON APPEAL FROM HCAL NO. 1698 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

The Court:

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 9 June 2020 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 (“Board”)  dated 26 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 21 December 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India. He entered Hong Kong on 9 September 2014 as a visitor and was permitted to remain until 23 September 2014.  He overstayed and surrendered to the authorities on 29 September 2014.  He lodged a non-refoulement claim on 16 December 2014. 

3.  The applicant’s claim was based on threats from his neighbour in India.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 21 December 2017(“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 10 May 2018, the Board dismissed the appeal on 26 July 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [37] of the Board’s Decision, the Board found that the applicant was not a truthful witness.  The Board was also satisfied at [68] that internal relocation would be viable.

The Judge’s decision

7.  The applicant filed a Form 86 on 21 August 2018 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 21 August 2018, the applicant deposed that it is unsafe for him to return.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [17] of the CALL-1 Form:

“13. The applicant appeared before me. He confirmed that he was treated fairly by the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him and his friend had explained the Board’s Decision to him.

14. He had no comments on the Board’s Decision.

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. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17. I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

10.  In the Notice of Appeal dated 16 June 2020 the applicant contended that:

“the Plaintiff will face hardship if he is to return back to his home country and that the [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”

11.  The applicant failed to comply with the direction made by this Court on 29 August 2020 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

12.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  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 for the judges and the litigants.  The non-compliance with such requirement 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 an oral 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 with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 15 December 2020 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

14.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

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