Re Alam Irshad

CACV 385/2019

[2021] HKCA 586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 385 OF 2019

(ON APPEAL FROM HCAL NO. 650 OF 2018)

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Before:  Hon Yeung, Lam VPP and Barma JA in Court

Date of Judgment:  7 May 2021

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J U D G M E N T

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The Court:

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 2 August 2019 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 dated 3 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India.  He entered Hong Kong as a visitor on 30 March 2009 and was permitted to remain until 13 April 2009.  He was arrested by the police on 20 April 2009.  He lodged a non-refoulement claim on 21 October 2013.  

3.The applicant’s claim was based on alleged threats from his creditor.  The details of the applicant’s claim have been summarised by the judge at [2] to [7] of the CALL-1 Form.

4.By a Notice of Decision dated 24 January 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.At [144] of the Board’s Decision, the Board found that the applicant’s case was in general not credible.  The Board was also satisfied at [145] that state protection would be available for the applicant and at [158] that internal relocation would be viable.

The Judge’s decision

6.The applicant filed a Form 86 on 17 April 2018 which contained the following grounds for judicial review, summarised below:

(1)  The Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  The Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  The Board’s Decision 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;

(5)  The hearing bundle for the hearing before the Board was provided at a late stage. Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(6)  The unfair hearing led the Board to wrongfully question his credibility; and

(7)  The Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return.

7.In his affirmation in support of the leave application dated 17 April 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage. Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the unfair hearing led the Board to wrongfully question his credibility; and

(3)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return.

8.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 [20] of the CALL-1 Form:

“13. These are however mostly just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or in what way was the decision unreasonable or irrational in the public law sense, or which COI relied on by the Board was not officially recognized or was hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14. Whilst it is also not clear as to the applicant’s complaint that the adjudicator had acted procedurally unfair in dealing with his appeal, but if he were referring to not being given another oral hearing before the Board after failing to attend the originally listed hearing on 31 January 2018, the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: ST v Betty Kwan [2014] 4 HKLRD 277 at paragraph 26.

15. In the applicant’s case, given the fact that he failed to respond to the Board’s request for an explanation for his non-attendance at the listed hearing, the Board was entitled to conclude that it was of his choice or decision not to attend the hearing before proceeding to deal with his appeal in his absence. I also note that the applicant has not identified what additional facts or grounds or further representations he would have put before the Board at an oral hearing that could advance his claim. As such I do not find the Board’s decision not to schedule another oral hearing for the applicant amount to any procedural unfairness or breach of the high standard of fairness.

16. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

17. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, records of his screening interview and the Director’s decision should be well familiar to the applicant as they had earlier all been already made available to him when he still had legal representation from DLS, whilst his SCF was completed on his own instructions with legal assistance, and that in his appeal process he never raised any issue or requested the Board for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

18. 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 India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19. 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.

20. 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

9.In the Notice of Appeal dated 19 August 2019 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.”

10.The applicant failed to comply with the direction made by this Court on 5 September 2019 requiring him to lodge skeleton submissions by 28 days before the hearing date, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

11.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, 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.

12.The hearing date on 17 December 2019 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

13.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.

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

The applicant, unrepresented, acted in person