Gallego Valdes Augusto v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 115/2022

[2023] HKCA 116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 115 OF 2022

(ON APPEAL FROM HCAL NO. 398 OF 2018)

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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 by the applicant against the decision of Campbell-Moffat J. (“the Judge”) set out in the Form CALL-1 dated 15 March 2022, by which the Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 709).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 25 January 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 September 2018 (“the Director’s Decision”), rejecting the applicant’s non-refoulement claim.

3.The appeal was originally listed to be heard on 8 November 2022 and was later refixed to be heard on 24 November 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 11 October 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 14 September 2022.  However, the applicant did not lodge any skeleton argument in support of his appeal.

4.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.

5.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

6.The applicant is a national of Columbia.  He last arrived in Hong Kong from China on the strength of his Colombian passport by land and on 28 September 2017, he was allowed to stay as a visitor until 26 February 2018.  He surrendered to the Immigration on 28 February 2018 for having overstayed in Hong Kong.  By a written representation dated 3 August 2018, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by Jose Miguel Taborda Zamora (“Jose”), who was a leader of a mafia group and whom the applicant’s ex‑girlfriend had started a relationship with.  The applicant claimed that in trying to stop him from fighting for custody or seeing the two children whom the applicant had with his ex-girlfriend, Jose used his connections to threaten him and attempted to have him killed.  Factual details of the applicant’s claim were summarised by the Judge at [4] of the Leave Decision.

7.By a Notice of Decision dated 28 September 2018 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR 2 risk[2], BOR3 risk^[3] and persecution risk^[4].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

8.On 4 October 2018, the applicant appealed against the Director’s Decision to the Board.  The applicant attended the hearing before the Board on 14 January 2019.  Having carefully assessed the evidence, the Board found the applicant’s evidence to be incredible as it is full of inconsistencies and contradictions.  Having considered the Country of Origin information (“COI”), the Board also found that state protection and internal relocation would be available to the applicant.  The Board thus considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, dismissed his appeal on 25 January 2019. 

The Leave Decision

9.On 12 February 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision. In his Form 86, the applicant did not state any ground of challenge.  In his supporting affirmation, the applicant merely asserted that the Board’s Decision was unfair but failed to provide any elaboration or particulars in support.  As the applicant did not request for an oral hearing, the Judge determined his application on paper.

10.By the Leave Decision, the Judge refused to grant leave to the applicant to apply for judicial review.  Her reasons were set out at [9] to [12] of the Leave Decision:

“Leave to apply for judicial review

9. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator, it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review her.

Grounds of review

10. There were no grounds of review. He has not complained to this Court of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

12.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The Appeal

11.On 12 April 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“the grounds of his appeal are that the applicant will face hardship if he return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognised, or it simply hearsay. They have also relied on some cases which are outdated considering the dramatic change. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

12.As mentioned above, contrary to this Court’s direction dated 14 September 2022, the applicant failed to lodge any written submissions in support of his 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.In our view, the applicant’s appeal plainly lacks merit and must fail.  The arguments raised in his Notice of Appeal are all general and bare assertions without specific particulars.  They are also new grounds not raised before the Deputy Judge.  It is not permissible to run such new complaints in the appeal: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  More importantly, his complaints predominately focused on the Board’s Decision and he failed to identify with specific particulars any error in the Leave Decision.  Accordingly, they are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  On this basis alone, his appeal must fail.

16.In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, this application has failed to point to any error of law or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

17.Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.

The Applicant acting in person