Re Cham Sulayman

CACV 46/2022

[2022] HKCA 683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 46 OF 2022

(ON APPEAL FROM HCAL 183 OF 2019)

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Before:  Hon Au JA and Lisa Wong J in Court

Date of Judgment:  16 May 2022

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 7 January 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 112).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 3 December 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 October 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.The appeal was listed to be heard on 26 April 2022. The applicant was directed to lodge two sets of skeleton argument on or before 29 March 2022 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper. The direction and the warning were communicated to the applicant by the Notice of Hearing dated 4 March 2022.

4.On 30 March 2022, this Court further directed that unless the applicant lodged with the Court two sets of skeleton argument on or before 14 April 2022, the appeal hearing fixed on 26 April 2022 at 10:30am will be vacated with the appeal being determined on paper without further directions. The same was also communicated to the applicant by letter on the same day. However, the applicant did not lodge any skeleton argument in support of his appeal.

5.The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1. Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process. Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants. 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. Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal. In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this court has taken a firm stance on the requirement to lodge skeleton argument. Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

6.As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.

Background

7.The applicant is a national of The Gambia. He last entered Hong Kong as a visitor on 29 August 2014 and overstayed. On 5 December 2014, he surrendered to the Immigration Department and subsequently raised a non-refoulement claim on the basis that if he returned to The Gambia, he would be harmed or killed by the Gambian government arising from his claimed relationship with a paternal uncle, Colonel Cham, who was involved in a failed coup to overturn the government. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [3] of the Leave Decision.

8.By a Notice of Decision dated 13 October 2017, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated.

9.On 24 October 2017, the applicant appealed against the Director’s Decision to the Board. The applicant attended the hearing before the Board on 24 August 2018 and was assisted by an interpreter. The Board dismissed his appeal on 3 December 2018. Having regard to the passage of time since the failed coup and noting the Country of Origin Information (“COI”) that the relatives of Colonel Cham were all released without charge after the coup, on the evidence, the Board considered that there would only be a remote or speculative, but not real risk that the applicant would suffer the alleged harm if refouled. Accordingly, on the evidence, the Board found that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

10.On 21 January 2019, the applicant filed a Form 86 and a supporting affidavit applying for leave to apply for judicial review of the Board’s Decision. He did not provide any ground of review in his Form 86. In his supporting affidavit, he only claimed that he was not satisfied with the Board’s Decision as he still had problem in his home country. The Deputy Judge considered his application on paper as the applicant did not request for any oral hearing.

11.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. The Deputy Judge held that:

“9. 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.

10. In the Applicant’s case, the Board rejected his claim on its correct and reasoned findings of no real risk of any harm from the present Gambian government arising from his claimed relationship with Ndure Cham in a failed coup years ago against the former government for the thorough and detailed analysis and reasoning set out in paragraphs 25 ‑ 38 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

11. 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.

12. 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.”

The Appeal

12.On 21 January 2022, the applicant filed a Notice of Appeal against the Leave Decision. In his Notice of Appeal, he only stated that he wanted to challenge the Leave Decision but failed to provide any ground of appeal.

Discussion

13.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.Nowhere in his Notice of Appeal did the applicant identify any error in the Leave Decision or give any ground of appeal. It is well-established that in the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see Nupur Mst v Director of Immigration, supra, at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  We see no reason why the Leave Decision should be disturbed. As the applicant failed to provide any viable ground of appeal, the appeal ought to be dismissed on this basis.

16.Accordingly, we dismiss the appeal.

The applicant acting in person