RE SHAMSHER SINGH

CACV 346/2020

[2021] HKCA 501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 346 OF 2020

(ON APPEAL FROM HCAL NO 2605 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 29 July 2020, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1742.

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 November 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 March 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The appeal was listed to be heard on 29 March 2021 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 1 March 2021 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 3 February 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 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.

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 India.  He entered Hong Kong on 20 November 2015, overstayed and surrendered to the Immigration Department on 7 December 2015.  He later lodged a non-refoulement claim on 31 May 2016 and 1 June 2016.

7.  The details of the applicant’s claim and his personal background were set out at paragraphs 7 - 8 of the Director’s Decision, paragraphs 49 - 106 of the Board’s Decision and paragraphs 8 - 14 of the Deputy Judge’s Decision.

8.  Briefly stated, the applicant claimed that if he was refouled to India, he would be harmed or killed by his enemies who belonged to Shiromani Akali Dal (“SAD”), particularly Harpreet Singh (“Harpreet”) and Nirmal Singh (“Nirmal”) as they wanted him to join SAD and they wanted to occupy his farmland forcefully.  The applicant claimed that he was a member of the Indian National Congress (“INC”). He was a polling agent during the elections between 2009 and 2015.  During the elections, he was, for many occasions, arrested by police and was detained and tortured by the police.  It was only after his family having paid bribes to the police officers that he was released.  He also claimed to have a land dispute with Harpreet and Nirmal, who attacked him and his uncle in 2012 for occupying the land.  Harpreet and Nirmal continued to attack and harass the applicant in numerous occasions from 2012 to 2013.  Out of fear, he fled to Hong Kong for protection.

The Director’s Decision and the Board’s Decision

9.  In the Director’s Decision, the Director assessed the grounds on torture risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the BOR 2 risk^[4]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

10.  The applicant appealed the Director’s Decision to the Board.  On 22 August 2018 and 6 September 2018 respectively, the Board conducted an oral hearing, during which the applicant answered questions from the Board with the assistance of an interpreter and a duty lawyer.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection and dismissed his appeal against the Director’s Decision.

11.  The Board had serious doubt about the credibility and reliability of the applicant’s accounts.  It found that the applicant failed to make prompt and full disclosure of the material facts, provided inconsistent and implausible evidence and gave bare assertions without supporting documents. The Board refused to accept his evidence (paragraphs 134 - 193 of the Board’s Decision).  In any event, the Board found that there was no state involvement and internal relocation was available to the applicant (paragraphs 194 - 208 of the Board’s Decision).  Thus, the Board dismissed his appeal.

The Deputy Judge’s Decision

12.  The applicant filed a Form 86 on 16 November 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  In his supporting affirmation, he simply attached the hearing bundle presented to the Board.  His grounds of review at his Form 86 were summarized by the Deputy Judge at [21] of the Deputy Judge’s Decision:

“21.  The applicant relied upon the following grounds as attached to Form 86:

1.   the Director’s and the Board’s decisions are wrong, unreasonable and unfair;

2.   the Adjudicator failed to give him sufficient time and chance to arrange evidence to support his claim;

3.   the Director failed to consider and give proper weight to his case that he was tortured;

4.   the Director failed to consider his case properly and he did not give sufficient weight to his argument; and

5.   the Director had adopted an unfair attitude without considering the corruption and incompetence of the administration in India and he had failed to attain high standard of fairness.”

13.  The applicant’s hearing was originally fixed on 8 May 2019 but he did not attend the hearing.  The Deputy Judge dismissed his application for want of prosecution with the liberty to apply to set aside such order.  By a summons dated 22 May 2019, the applicant applied for leave to appeal against the Deputy Judge’s aforesaid order.  The Deputy Judge set aside the order.  An oral hearing was held on 5 July 2019.  After hearing the applicant and considering the available documents, the Deputy Judge held that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in [22] - [34] of the Deputy Judge’s Decision:

“DISCUSSION

The Director’s Decision

22.    In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

23.    The applicant has not set out any exceptional circumstances.

24.    Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

25.    The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

26.    The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. he was legally represented at the appeal hearing as well. His lawyer had explained to him the Director’s and the Board’s Decisions. He considered that he had had a fair hearing before the Board.

27.    I put the Board’s findings to him and asked for his comments. He said that he understood and that he now had the document to prove he owed the land.

28.    However, this Court has no power to make investigation into the facts as held by the Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Board did not come to the above conclusion solely because he did not have the documentary evidence to prove his ownership of the land. I did not consider his documentary evidence.

29.    It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

30.    The above Court of Appeal case also decided that the facts are found by the Immigration officer and the Adjudicator.

31.    Grounds (1), (3) to (5) are his opinions without any evidence in support of them. They are bare assertions only.

32.    Ground (2) also fails because he has not even set out what evidence he wanted to arrange for the Board’s consideration.

33.    The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

34.    Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

14.  The applicant filed the Notice of Appeal on 10 August 2020 to appeal the Deputy Judge’s Decision.  His ground of appeal is as follows:

“I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.” [sic]

Discussion

15.  The relevant legal principles governing the appeal in non-refoulement cases are set out at paragraph 14 of Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  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, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the 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).

17.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Deputy Judge’s Decision with sufficient particulars and specifics.

18.  However, it is clear that the applicant did not identify any errors committed by the Deputy Judge.  There are therefore no viable grounds of appeal to challenge the Deputy Judge’s Decision.

19.  In any event, we have reviewed the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

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