Re Ndiaye Diaffe

CACV 349/2022, [2024] HKCA 617

On Appeal From [2022] HKCFI 2368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 349 OF 2022

(ON APPEAL FROM HCAL NO 604 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the 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 3 August 2022, by which the Deputy Judge refused his application for leave to apply for judicial review  ([2022] HKCFI 2368)  (“the Leave Decision”).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 15 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 20 December 2017 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.This appeal was listed to be heard on 5 December 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 7 November 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 5 October 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 applicant was deemed to have waived his right to have an oral hearing and elected to have his appeal disposed of on paper.  The hearing date was thus vacated on 10 November 2022.  We proceeded to consider this appeal on paper based on the available materials.

Background

6.The applicant is a national of Senegal.  He last arrived in Hong Kong on 2 August 2016 and was permitted to remain as a visitor till 16 August 2016.  He did not depart and overstayed.  On 17 August 2016, he surrendered to the Immigration Department.  He was released on recognizance on 1 September 2016.  On 14 October 2016, he was convicted of the offence of overstaying and sentenced to two weeks’ imprisonment, suspended for three years.  By way of written representation dated 9 February 2017, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by members of his family, in particular his uncle Abdourakhmane Diagne, for failing to repay his loan owed to them.  Factual details of his claim were summarised by the Deputy Judge at [1] - [4] of the Leave Decision.

7.By the Director’s Decision, 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 not substantiated.  In any event, the Director found that state protection and internal relocation would be available to him.

8.The applicant then appealed against the Director’s Decision to the Board.  The applicant attended a hearing before the Board on 7 December 2018 and gave oral evidence.  The Board dismissed his appeal on 15 February 2019.  Having assessed the evidence, the Board accepted that the applicant was threatened by his uncle to repay his loan.  However, the Board found that there was insufficient evidence to show that the applicant would be harmed or killed by his uncle or other family members if he was to return to Senegal.  The Board concluded that the applicant failed to substantiate his claim on the applicable grounds and dismissed his appeal.

The Leave Decision

9.On 4 March 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision.  However, the applicant failed to provide any ground of review in his Form 86 or supporting affirmation.

10.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [9] - [13] of the Leave Decision:

“9. On 4 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such 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 for his intended challenge.

10. 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.

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

12. 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.

13.  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

11.On 29 August 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, the applicant only stated that:

“I want to challenge the decision.”

12.Contrary to the directions of the Registrar of Civil Appeals dated 21 September 2022, the applicant failed to lodge any written submissions in support of the present 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.At the outset, nowhere in his Notice of Appeal did the applicant identify any error made by the Deputy Judge in the Leave Decision.  As such, there is simply no viable ground of appeal and the appeal must fail on this basis alone.

16.In any event, 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].  The Board and the Director had considered in detail the materials and representations provided by the applicant as well as the Country of Origin Information before reaching their respective decisions.  We have reviewed the Board’s Decision and the Leave Decision and the reasons the Board and the Deputy Judge gave for their decisions.  As correctly noted by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

17.For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person