Re Iftekhar Zamader

CACV 317/2018

[2018] HKCA 821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 317 OF 2018

(ON APPEAL FROM HCAL NO. 911 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 Bruno Chan (“the Judge”) given on 13 July 2018 dismissing his application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 6 February 2017.  The applicant consents to the appeal being heard by a two-judge court.

2.The appeal was listed for hearing on 6 November 2018.  The applicant was directed to lodge written skeleton argument by 12 October 2018 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 will be vacated with the appeal being determined on paper.  The direction and warning were communicated to the applicant in the Notice of Hearing dated 28 September 2018.

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 non-compliance is treated as the abandonment of the right to an oral hearing. 

4.The applicant did not lodge any skeleton argument by the stipulated time.  The hearing date of the appeal was accordingly vacated, and we have proceeded to consider this appeal based on the available materials before us.

5.The applicant is a Bangladesh national.  He arrived in Hong Kong on 7 May 2007 and was given permission to remain as a visitor until 21 May 2007.  He overstayed and was arrested by the police on 7 June 2008.  He lodged a non-refoulement claim on 14 June 2008 based on his fear of being harmed or killed by members of the Awami League, and by the police in relation to a false charge of murder as well as the family members of the deceased of the murder case.  For the purpose of this appeal, it is not necessary to set out the basis of the applicant’s claim in details.   

6.By two decisions dated 4 September 2015 and 27 October 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to all the applicable grounds, namely, torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.  The applicant appealed the Director’s decision to the Board.  By a decision dated 6 February 2017, the Board dismissed the appeal.    

7.On 13 February 2017, the applicant filed a Form 86 in HCAL 34/2017 to apply for leave to judicially review the Board’s decision.  An oral hearing took place on 24 July 2017.  On 28 August 2017, Chung J refused to grant leave.  

8.On 20 November 2017, the applicant filed another Form 86 in HCAL 911/2017 to re-apply for leave to judicially review the Board’s decision, relying on grounds that were identical to those in HCAL 34/2017. The Judge heard the application on 30 May 2018.  The applicant was present, and was invited to explain why he should be allowed to bring a second application after the dismissal of his previous identical application.  The applicant did not offer any explanation.  On 13 July 2018, the Judge dismissed the application as an abuse of the court process: see [8] of the Form CALL-1 dated 13 July 2018, [2018] HKCFI 1520.

9.On 16 July 2018, the applicant filed a notice of appeal together with an affirmation that gave an account of his claim and the grounds for applying for judicial review, and setting out two grounds of appeal.  They are that: (1) The Judge was wrong in law in holding that there was no state acquiescence or involvement; and (2) The Judge failed to provide detailed reasons in support of his decision.     

10.Evidently, when the applicant made the second leave application by filing the Form 86 on 20 November 2017, more than three months had lapsed since the Board rendered its decision on 6 February 2017.  The leave application was accordingly made out of time: see Order 53 rule 4 of the Rules of the High Court, Cap. 4A.  In dismissing the application, the Judge had not extended the time for bringing judicial review against the Board’s decision. 

11.As held in MI v. Permanent Secretary for Security [2018] HKCA 419, in judicial review cases brought outside the three-month time limit where extension of time was refused, the applicant must first obtain leave to appeal under section 14AA of the High Court Ordinance, Cap. 4 before he can bring an appeal in the Court of Appeal.  Further, under Order 59 rule 2B(1) of the Rules of the High Court, an application for leave to appeal should in the first place be made to the Court of First Instance. 

12.In the present case, the applicant had not obtained leave to appeal before filing the Notice of Appeal.  As the Judge rightly held, this second application for leave to bring judicial review is plainly an abuse of the court process, and ought to be dismissed. 

13.In respect of the two grounds of appeal, the first ground is clearly misplaced.  The Judge dismissed the leave application as an abuse of court process.  There was no discussion of the basis of the applicant’s non-refoulement claim in the Judge’s reasons.  Nor was there any reference to state acquiescence.  As to the second ground of appeal, it is also unarguable. The Judge had clearly explained that the leave application, being identical to the previous one which had been dismissed by Chung J, was an obvious abuse of the court process. 

14.The intended appeal against the Judge’s decision has no merit.  Leave to appeal should not be given.  We therefore refuse to grant leave under section 14AA.

15.As there is no leave to appeal, the appeal is not properly constituted.  Accordingly, we order that the Notice of Appeal be struck out and the appeal be dismissed. 

The applicant, unrepresented, acted in person.