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Re Ghale Dhan Mata

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date05 November 2021
Neutral Citation[2021] HKCA 1639
Year2021
Judgement NumberCACV150/2021
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV150/2021 RE GHALE DHAN MATA

CACV 150/2021

[2021] HKCA 1639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2021

(ON APPEAL FROM HCAL NO 735 of 2018)

____________________

RE: GHALE DHAN MATA Applicant

____________________

Before: Hon Au JA and Lisa Wong J in Court

Date of Judgment: 5 November 2021

_______________

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 against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 25 March 2021, refusing leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 795.

2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 March 2018 (“the Board’s Decision”) dismissing the appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 2 September 2016 and 1 August 2017 (“the Director’s Decisions”) rejecting the applicant’s non-refoulement claim.

3. This appeal was listed to be heard on 12 October 2021. The applicant was directed to lodge two sets of skeleton argument on or before 14 September 2021 and was warned that if she failed to do so, she would be deemed to have waived her 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 18 August 2021.

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 Nepal. She entered Hong Kong as a transit visitor on 28 January 2014 with permission to remain until 4 February 2014. She overstayed, and surrendered to the Immigration Department on 15 January 2016. She raised a claim for non‑refoulement protection on the basis that, if she were to return to Nepal, she would be harmed or killed by the Maoists because she reported them to the Nepalese authorities. The factual details of the applicants’ claim were summarised by the Deputy Judge at [2] ‑ [4] of the Leave Decision.

7. By a Notice of Decision dated 2 September 2016 and a Notice of Further Decision dated 1 August 2017, the Director rejected the applicant’s non-refoulement claim. His decisions covered torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4]. Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from the Maoists upon her return to Nepal as low. The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

8. On 13 September 2016, the applicant appealed the Director’s Decisions to the Board. She attended an oral hearing before the Board on 19 December 2017 and gave evidence. The Board dismissed her appeal on 14 March 2018. The Board found no reliable evidence of any threats or ill-treatments being made against the applicant by the Maoists prior to her departure from Nepal. The Board further doubted the applicant’s fear of the harm from the Maoists. It further found that state protection was available and internal relocation viable.

The Leave Decision

9. On 26 April 2018, the applicant filed a Form 86 and a supporting affirmation for leave to apply for judicial review of the Board’s Decision. No ground against the intended challenge was given. In her supporting affirmation, she merely stated that the Board’s Decision was unfair and unreasonable without providing any particulars or elaboration. The applicant attended an oral hearing on 1 December 2020. By the Leave Decision, the Deputy Judge held that:

“10. On 26 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that the decision is unfair and unreasonable but without providing any particulars or elaboration as to how it was so, nor did she put forward any other ground for her intended challenge, and at the hearing of her application she merely repeated her claim that her problem still exists that she cannot return to her home country. As such and in the absence of any error of law or irrationality or procedural unfairness in her 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 her intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing...

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