Re Waklin Graciam Doping

CACV 153/2021

[2021] HKCA 1371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 153 OF 2021

(ON APPEAL FROM HCAL 1306 OF 2018)

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Before:  Hon Cheung JA and Lisa Wong J in Court

Date of Judgment:  17 September 2021

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal by the abovenamed applicant, Waklin Graciam Doping, against the order made by Deputy High Court Judge K W Lung (“Judge”)  on 25 March 2021 (“Judge’s Decision”)  refusing him leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”)  given on 29 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”)  of his non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 11 October 2017 (“Director’s Decision”).

Basis of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of the Philippines now aged about 40, is a fear of being harmed by (1)  his family because he is gay and refused to enter into an arranged marriage with the daughter of his father’s friend and business partner Malik Khan and (2)  Malik Khan’s family for having shamed them.

3.For a detailed summary of the circumstances giving rise to such fear, see paragraph 9 of the Director’s Decision and paragraphs 29 to 39 of the Board’s Decision.

Overstaying in Hong Kong and lodgment of NRF Claim

4.The applicant arrived in Hong Kong as a visitor on 11 August 2013.  He overstayed after the expiry of his visa since 26 August 2013.  The police arrested him for overstaying on 9 January 2014.  

5.The applicant raised the NRF Claim by written representations dated 12 and 23 January 2014 and 7 May 2014.  He submitted a Non-refoulement Claim Form dated 11 February 2015 and attended a screening interview on 4 October 2017, with legal representation from the Duty Lawyer Service.

Director’s Decision

6.The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

Appeal to Board and Board’s Decision

7.The applicant appealed against the Director’s Decision to the Board on 24 October 2017.

8.The Board conducted a rehearing of the NRF Claim on 22 February 2018, at which the applicant testified before, and answered questions by, the Board through a Tagalog/English interpreter.

9.The Board dismissed the applicant’s appeal on all the said grounds for non-refoulement protection on 29 June 2018, after finding numerous inconsistencies in the applicant’s account and in the different versions of events that he had given at various stages.  Of significance are the applicant’s inability to state a consistent approximate time from which his father and Malik Khan had known each other or to recall the full name of his father and Malik Khan’s partnership business; and that Malik Khan, a Muslim, would arrange for his daughter to marry a Catholic.  The Board did not accept the applicant’s claims regarding (1)  his father’s friendship and partnership with Malik Khan; (2)  his father’s arrangement for the applicant to marry Malik Khan’s daughter in 2013; (3)  his refusal of this proposal; and (4)  the threats made by Malik Khan’s family against him.  Further, the Board did not accept that the applicant’s family disowned him because he is homosexual.

Application for leave for judicial review and Judge’s Decision

10.The notice of application for leave to apply for judicial review issued by the applicant under HCAL 1306/2018 on 6 July 2018 (“Form 86”)  did not set out any proposed ground for judicial review of the Board’s Decision.  The supporting affirmation contained a bare assertion of the applicant’s belief that his case had been misjudged.

11.That being the case, the Judge did not find any reasonably arguable basis for the applicant’s intended challenge and dismissed the Form 86 upon a consideration of the papers before him as the applicant did not ask for an oral hearing.

Appeal to Court of Appeal - grounds of appeal and submission

12.The notice of appeal filed herein on 8 April 2021 did not set out any ground of appeal.

13.In breach of paragraph 4(1)  of the directions given by the Registrar of Civil Appeals on 9 July 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 5 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

14.The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance 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 a 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 is treated as the abandonment of the right to an oral hearing.

15.The hearing date on 6 September 2021 was therefore vacated and the applicant was debarred from lodging any written submission.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

16.In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.

17.The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

18.The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.

19.Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

20.The applicant did not in the notice of appeal identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

Disposition

21.For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.  

The applicant, unrepresented, was absent