RE SHRESTHA MUKESH DAS

CACV 208/2019

[2019] HKCA 966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2019

(ON APPEAL FROM HCAL NO. 1021 of 2018)

___________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 17 April 2019 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 16 August 2017 rejecting the applicant’s non-refoulement claim and the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 29 May 2018 dismissing his appeal against the Director’s decision.

2.  The appeal was listed for hearing on 5 August 2019.  The applicant was directed to lodge two sets of skeleton argument on or before 8 July 2019 and also warned that if he failed to do so, he would be deemed to have abandoned 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 letter dated 17 May 2019 and the Notice of Hearing dated 18 June 2019.

3.  The requirement for lodging skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is essential 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 to be 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. 

4.  In the present case, as the applicant had failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated.  The applicant was informed of this by the Court’s letter dated 12 July 2019. On the same day, the applicant lodged a skeleton submission by post[1]. As the hearing date had already been vacated, we have processed this appeal on paper based on the available materials and taking into account the skeleton submission.  

5.  The applicant is a Nepali national.  On 27 January 2015, he entered Hong Kong and was permitted to stay as a visitor until 28 January 2015.  On 3 February 2015, while overstaying, he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he were to return to Nepal, he would be harmed or killed by people of the Young Communist League (“YCL”), which is a branch of the Maoists.

6.  The details of the applicant’s claim were set out in [5] to [8] of the Director’s decision and [21] to [49] of the Board’s decision, and summarized by the Judge in [1] to [9] of the Form CALL-1 dated 17 April 2019, [2019] HKCFI 975.  In brief, the applicant said he and his father belonged to the Nepali Congress Party.  In 2000, the applicant was approached by the YCL people who demanded him to join their party or to pay 500,000 Nepalese Rupees, otherwise they would kill him.  The applicant had not made a report to the police.  In 2001 and 2002, he and his family relocated to other areas to avoid the YCL people, but he continued to receive threats over the phone.  He left Nepal and stayed overseas.  In August 2013, the applicant returned to his home village and helped his party in the election, during which he was attacked by the YCL people.  Fearing for his safety, he left for Malaysia and in 2015 came to Hong Kong.

7.  By Notice of Decision dated 16 August 2017, the Director rejected the applicant’s claim on all applicable grounds namely, torture risk^[2], BOR 3 risk^[3], BOR 2 risk^[4] and persecution risk^[5].

8.  The applicant appealed to the Board.  A hearing was held on 9 April 2018, during which the applicant gave evidence and answered questions from the Board.  By its decision dated 29 May 2018, the Board dismissed the appeal.  The Board found the applicant’s evidence unreliable, and that his claimed fear of being harmed or killed by the YCL people was based entirely on his own speculation.  The Board concluded that the applicant failed to establish a case of non-refoulement on any of the applicable grounds.

9.  On 5 June 2018, the applicant filed a Form 86 and an affirmation to apply for leave to judicial review the Director’s and the Board’s decisions.  He sought relief on the grounds that:

(1)  He had less than 14 days to appeal to the Board.

(2)  He was not provided with translation/interpretation assistance.  At the hearing, only the Director’s skeleton submission was read to him.  The Board’s decision was not accompanied by a translation.

(3)  The Board might have taken some of his answers out of context.

10.  At the request of the applicant, an oral hearing was held on 11 September 2018 to hear his leave application.  The applicant appeared in person in court with the assistance of a Nepali interpreter.  Having considered the grounds for judicial review and the applicant’s oral submission, the Judge concluded that the intended judicial review had no prospect of success and refused to grant leave to apply for judicial review.  The Judge set out his reasons in [24] to [31] of the Form CALL-1 as follows:

“24.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

25.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

26.  The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

27.  The Applicant complained he had less than 14 days to appeal to the Board.

28.  The Director's decision came out on 16 August 2017. The Applicant filed his appeal on 28 August 2017 before the 14-day deadline. That was his own choice. The appeal was heard seven odd months later on 9 April 2018. The Applicant had much time to get himself prepared. There was no evidence he had complained to the Adjudicator that he was not ready for the hearing. Instead, he adopted all the information in the appeal bundle and answered the Adjudicator’s questions. That showed the Applicant had prepared for the appeal.

29.  The Applicant complained the Board's decision came with no translation and he suspected the Adjudicator might have taken some of his answers out of context.

30.  I have already addressed the interpretation/translation issue. The Applicant’s suspicion of the Adjudicator also had no basis. It was a vague complaint.

31.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

11.  By a Notice of Appeal dated 29 April 2019, the applicant appealed against the Judge’s decision to this Court.  The applicant’s grounds of appeal centred around his language difficulty and the lack of assistance.  He complained that the Judge disregarded his language incapability. He said he did not have language assistance, there was no translation of the hearing bundle, and the Judge’s decision was not read to him in his language. It was also said that the Judge should have considered that as the events of his claim happened some twenty years ago, failure of memories was natural.  The applicant further complained that the Judge did not properly review his case and he might have taken his answers out of context.

12.  The applicant’s skeleton submission was largely the same as the notice of appeal.

13.  This Court has repeatedly pointed out that the focus of an appeal to this Court is the correctness of the trial judge’s decision; hence it is incumbent upon an appellant to identify proper grounds for this Court to interfere with the trial judge’s decision. 

14.  In the present case, what was stated in the notice of appeal and the skeleton submission does not amount to viable grounds of appeal for the following reasons:

(1)  As can be seen from the reasons given (see [10] above), the Judge had given careful consideration to the applicant’s complaint of language difficulty and lack of assistance in this regard before rejecting it as being not reasonably arguable.

(2)  There was no hearing bundle in the hearing before the Judge.  The Judge only considered the Form 86 and affirmation filed by the applicant and his oral submissions.  The complaint about not translating the hearing bundle is misplaced.

(3)  Similarly, the Judge had not engaged in an assessment of the applicant’s claim; thus the argument about failure of memories with time simply has no relevance.  

(4)  The complaint that the Judge did not properly review his case was not supported by any particulars.   

(5)  In short, other than repeating his complaint on lack of language assistance and making broad, general criticisms against the Judge, the applicant has not pointed to any specific error in the Judge’s decision and the reasons he gave. 

15.  For the above reasons, the appeal has no merit.  Accordingly, we dismiss the appeal.