RE SHARMA ROHIT

CACV 69/2021

[2021] HKCA 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 69 OF 2021

(ON APPEAL FROM HCAL 2976/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge P Li given on 9 February 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 10 December 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 3 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He last entered Hong Kong on 18 August 2014 as a visitor and was permitted to remain until 21 August 2014.  He overstayed and was arrested on 7 September 2014.  He lodged a non-refoulement claim on 9 September 2014. 

3.  The applicant’s claim was based on threats from his relatives arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [3] to [17] of the CALL-1 Form.

4.  By a Notice of Decision dated 3 October 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 4 October 2018, the Board dismissed the appeal on 10 December 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [102] of the Board’s Decision, the Board found that the applicant was unlikely to face any real risk of harm upon his return.

The judge’s decision

6.  The applicant filed a Form 86 on 27 December 2018 which contained no ground for seeking relief.

7.  In his affirmation in support of the leave application filed on 27 December 2018, the applicant exhibited the relevant documents but did not give any ground for judicial review.

8.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [26] to [32] of the CALL-1 Form:

“26. The adjudicator found that the applicant was not a credible witness. She concluded that the applicant was not targeted by Manoj, the police or anyone in India. There was no real risk of any harm if he returned to India. The issue of State protection would not arise.

27. The adjudicator nonetheless considered the question of internal relocation. She was satisfied that there were reasonable options of relocation. Given his background, it would not be unduly harsh for the applicant to do so.

28. The adjudicator concluded that there was no real risk of harm which could establish BOR 3, BOR 2, persecution risk and torture risk. All claims failed.

Judicial Review

29. The applicant applied for leave to apply for judicial review on 27/12/2018. In his supporting affirmation, he has not pointed out any specific error in the decisions of the TCAB and the Director.

30. In judicial review, this court decides whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. Finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.

31. In my judgment, there is no error of law or procedure. The decisions are reasonable.

Conclusion

32. The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.”

Grounds for appeal

10.  In the Notice of Appeal filed on 22 February 2021, the applicant stated that:

“the Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations”

11.  The applicant failed to comply with the direction made by this court on 5 May 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

12.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 26 July 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some errors on the part of the judge that would justify this court in intervening.  That has not been done here.  Moreover, the complaints now made against the Board (which are in any event vague and unparticularised) were never raised before the judge, and cannot now be raised, for the first time, on appeal.   

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.