Re Mohammed Naveed

CACV 81/2018

[2018] HKCA 497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 81 OF 2018

(ON APPEAL FROM HCAL NO. 604 of 2017)

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Before: Hon Chu and Barma JJA in Court

Date of Judgment: 16 August 2018

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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 Lok J (“the Judge”) given on 15 March 2018 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 25 August 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 17 November 2015 and 16 March 2017 rejecting his non-refoulement claim.  

2.The appeal was listed to be heard on 6 August 2018.  The applicant was directed to by Barma JA to lodge 2 sets of skeleton argument by 16 July 2018 and also warned that should he fail to do so, the appeal date would be vacated and the appeal would be processed on paper based on materials already lodged.  The direction and the warning were communicated to the applicant in the letter from the court dated 25 June 2018 and also in the notice of hearing of the same date.

3.The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Due compliance with the requirement to lodge skeleton arguments is important for the proper and effective functioning of the appeal process since 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.  This Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement after being warned of the consequence of default, is treated as the abandonment of the right to an oral hearing.  In the present case, as the applicant failed to lodge any 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 entered Hong Kong on 27 May 2013 and was permitted to remain as a visitor until 10 June 2013.  He overstayed and was arrested by the police on 17 June 2013.  On 28 June 2013, he lodged a non-refoulement claim based on his fear that, if he returned to India, he would be harmed or killed by a moneylender called Zafar and his people because he failed to repay money he borrowed from Zafar. 

5.The applicant’s case, in gist, is that around the end of 2012, he borrowed 500,000 rupees at 10% monthly interest from Zafar for setting up a restaurant business with his brother.  The restaurant business went well initially and he could make punctual monthly repayment.  However, the business declined later on and the restaurant was closed in early 2013.  The applicant was unable to make the monthly payment.  One day, Zafar and four to five people, who were armed with knives and firearms, came to the applicant’s home to demand repayment.  The group slapped the applicant and his brother in the face.  Zafar gave the applicant five days to make repayment and told him there would be dire consequences if he failed to do so. 

6.The applicant failed to make repayment by the deadline.  A few days later, the applicant was abducted by a group of seven to eight people armed with hockey sticks, taken on board a vehicle and driven to a farmhouse. He was slapped, punched and kicked during the car journey. Later, Zafar came to the farmhouse.  He demanded the applicant to make repayment and hit him with a bamboo stick. He gave the applicant two more days and warned that this was the last chance.  The applicant sustained bruises and injuries on the eyebrow, back of the head, arms and belly and received treatment from a private clinic.  In view of the dangerous situation he was in, the applicant went to Mumbai and departed for Thailand on 14 March 2013.  He returned to Mumbai on 19 March 2013 because he could not find any channel to seek asylum.  On 26 May 2013, the applicant left for Hong Kong to seek protection after learning that Zafar had repeatedly threatened his parents that he would track him down and kill him if he did not repay the money.  

7.By a Notice of Decision dated 17 November 2015, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1] , the persecution risk[2] , and the torture risk[3] .  By letter dated 27 February 2017, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk[4] . Not having received a response from the applicant, the Director proceeded to consider the applicant’s claim on the ground of BOR 2 risk based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 16 March 2017, the Director decided against the applicant.

8.The Board heard the applicant’s appeal against the Director’s decisions on 20 March 2017.  The applicant clarified some matters in his non-refoulement claim form and record of interview.  He told the Board he had nothing to supplement except that he still felt he would be at risk if refouled to India.  By its decision dated 25 August 2017, the Board dismissed the appeal. 

9.For the reasons set out in [55] to [59] of the decision, the Board found the applicant’s evidence unreliable.  Separately, the Board also found that the applicant failed to make out a case in respect of all the four applicable grounds.  The Board considered that, even on the applicant’s case, it did not amount to persecution for a Convention reason and the applicant could not establish he had a well-founded fear of being subjected to persecution if refouled to India.  The Board was also of the view that the applicant’s experiences, even if accepted, did not amount to ill-treatment that met the minimum level of severity required by the law, and the claim failed under the BOR 3 risk ground.  It was further considered that the applicant’s experiences did not constitute torture within the statutory definition and there was no suggestion that there was any involvement of state actor acting in an official capacity such that there was no basis for a torture risk.  The Board also found no case of violation of the rights under BOR 2.  Moreover, the Board found that even if there was real or genuine risk of harm as claimed, such risk would be confined to the local area where the applicant lived and internal relocation alternatives were available.  

10.The applicant filed his Form 86 on 8 September 2017 seeking leave to apply for judicial review against the Board’s decision.  In his supporting affirmation filed on the same day, the applicant contended that the Board was in breach of procedural fairness and advanced the following points in support:

(1) The Board had unlawfully fettered its discretion by refusing the appeal on the grounds that they did not satisfy the requirements.

(2) The adjudicator acted in a procedurally unfair manner in dealing with the appeal.

(3) The Board’s decision to refuse the appeal was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness.

(4) The Board failed to meet the greater care and duty owed to a self-represented claimant.

11.The applicant did not request for an oral hearing, and the Judge dealt with the application on paper.  On 15 March 2018, the Judge dismissed the application and gave the following reasons in [3] to [6] of the CALL-1 Form:

“3. In his supporting affirmation, the Applicant complains that the Adjudicator was in breach of procedural fairness, wrongly exercised the discretion in rejecting his claim, made a decision which was unreasonable or irrational in the public law sense and failed to meet the greater care and duty owed to a self-represented claimant. No specific particulars have been provided to the court to substantiate these allegations and the Applicant just asks the court to review his case.

4. I have carefully considered the written decision of the Adjudicator. In my judgment, the Adjudicator had properly applied the law in reaching the decision. An oral hearing was held, and the Adjudicator had carefully and properly considered the evidence of the Applicant. The Adjudicator had also pointed out to the Applicant some of the issues that he might need to address the Tribunal, and the Applicant was given adequate opportunity to address those issues.

5. Though the Applicant was not legally represented in the hearing, the Adjudicator had properly discharged the duty owed to self-represented claimant in the conduct of the hearing. There was simply no procedural unfairness to the Applicant.

6.     As the Applicant’s intended judicial review does not have any prospect of success, I refuse his application for leave to apply for judicial review.”

12.The Notice of Appeal dated 29 March 2018 contained the following grounds of appeal:

(1) The applicant will face hardship if he is to return back to his home country.

(2) The Board significantly relied on source of news which is not officially recognized or is simply hearsay.  It also relied on some cases which are fairly outdated considering the dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculation.

13.We note that these points do not relate to the reasons given by the Judge for his decision to refuse leave to apply for judicial review.  The complaint that the applicant made in his Notice of Appeal was not raised in his application to the Judge.  This is improper because appeals to the Court of Appeal do not operate by way of rehearing or retrial. 

14.In any event, we have reviewed the Board’s decision.  We can discern no legal basis to disturb its finding that the applicant’s account was unreliable.  The applicant has not challenged this finding both in the court below and in this appeal.  We also do not see any ground to interfere with the Board’s conclusion that, even if the applicant’s account is true, the necessary requirements for affording protection under the applicable grounds were not met.

15.There is also no merit in the complaints made against the Board in the Notice of Appeal.  Firstly, the Board had not referred to any source of news or cases concerning the conditions in India.  The Board only referred to the World Factbook of US Central Intelligence Agency for the geography and demography of India when considering the issue of internal relocation.  Secondly, the applicant has not identified any specific error in the information relied on by the Board.  The grounds of appeal are therefore not made out.       

16.We also see no ground for interfering with the Judge’s reasons for his decision.  We agree that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused. 

17.Accordingly, we dismiss the appeal.

The applicant, unpresented, acted in person.