Sanyang Omar v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 415/2020

[2021] HKCA 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 415 OF 2020

(ON APPEAL FROM HCAL NO 1877 OF 2018)

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BETWEEN

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Before:  Hon Barma JA and S T Poon J in Court

Date of Judgment:  17 March 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 19 August 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 (“the Board”) dated 30 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 3 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of The Gambia.  He entered Hong Kong on 10 December 2014 as a visitor and was permitted to remain until 10 March 2015.  He overstayed and surrendered to the authorities on 12 March 2015.  He lodged a non-refoulement claim on the same day. 

3.The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the Form CALL-1[1].

4.By a Notice of Decision dated 3 October 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4], and the torture risk[5].

5.The applicant appealed to the Board.  After a hearing on 26 July 2018, the Board dismissed the appeal on 30 August 2018 (“the Board’s Decision”).  The Board’s Decision covered all four applicable grounds for non-refoulement protection.

6.Primarily, the Board found that the documentary evidence provided by the applicant substantially undermined the credibility of parts of his claim.  The Board held that the applicant was neither at risk of harm from the opposing political party and the Gambian government nor from people of the Jolas ethnicity.  The Board was also satisfied at that internal relocation was viable.

The judge’s decision

7.The applicant filed a form 86 on 10 September 2018 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application dated 10 September 2018, the applicant deposed:

“I can’t go back to my country at this moment. Please help me to stay in Hong Kong until my problem will be solved…”

9.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on the papers.

10.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 [12] to [15] of the Form CALL-1:

“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of The Gambia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

11.In the Notice of Appeal dated 31 August 2020, the applicant contended that:

“I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.” (sic)

12.The applicant agreed by a letter of 31 August 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this Court on 1 December 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 would be dealt with on the papers in the event of non-compliance.

13.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.

14.The hearing date on 1 March 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on the basis of the materials already filed with the Court.

Discussion

15.In the Notice of Appeal, the applicant complained of factual error and lack of transparency in the “decision” without specifying which decision he was referring to.  If the applicant was referring to the Board’s Decision only, these grounds of appeal would not be valid as it is necessary to identify errors made by the judge. 

16.If the applicant was referring to the judge’s decision in the Form CALL-1, the applicant did not give sufficient particulars for the factual errors allegedly committed by the judge.  The applicant also did not identify the issues that required greater transparency.  In our view, this ground is plainly without merit. 

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

The applicant, unrepresented, acted in person