RE KARAMJIT SINGH

CACV 500/2018

[2019] HKCA 192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 500 OF 2018

(ON APPEAL FROM HCAL 1141/2017)

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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 Campbell-Moffat J given on 28 September 2018 refusing leave 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 dated 22 December 2017 refusing the applicant’s application for late filing of his Notice of Appeal against the decision the Director of Immigration dated 11 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The procedural history of the non-refoulement claim has been summarised by the judge in [2] – [4]:

“2. The Applicant first entered Hong Kong in 2004, as a visitor, and did so on a number of occasions, but on 15 August 2004, he entered and failed to leave. He eventually surrendered to the Immigration Department on 23 March 2007. He was convicted of overstaying on 17 April 2007 and sentenced to six weeks’ imprisonment. At the end of that sentence, the Applicant was transferred to Castle Peak Bay Immigration Centre and whilst there, made a torture claim. He was therefore released upon recognisance on 1 June 2007. On 10 July 2007, he entered into a marriage with a Filipino permanent resident and made a claim for a dependent visa on 2 August 2007. That Application was withdrawn in July 2009. The torture claim was refused on 18 July 2013 and was unsuccessfully appealed but by that stage the Applicant had failed to surrender to his recognisance. On 31 May 2014, he was arrested for employing a person not lawfully employable and released upon police bail. He absconded thereafter.

3. On 21 September 2016, the Applicant returned to Hong Kong via the international airport, claiming to have exited Hong Kong by a similar means. He was refused permission to land and was placed in police custody and prosecuted for several offences, for which he received 17 months’ imprisonment on 24 September 2016. The Applicant submitted a non-refoulement (‘NRF’) claim by way of written representation on 22 March and 13 April 2017, whilst in prison. His NRF claim form was submitted on 26 June 2017.

4. The Applicant attended a screening interview on 7 August 2017, whilst serving his sentence of imprisonment.  The Director of Immigration (‘the Director’) dismissed his claim on all grounds on 11 August 2017.  The Applicant filed his Notice of Appeal out of time on 22 September 2017.  The adjudicator of the Torture Claims Appeal Board, Li Wai-chi (‘the Adjudicator’), considered the application for late filing as a preliminary matter.  The Adjudicator refused that application on 22 December 2017.”

3.  The applicant’s claim was based on threats from the family of a girlfriend he met when he was aged 14.  The details of the applicant’s claim have been summarised by the judge at [6] to [12] of the CALL-1 Form.

4.  By a Notice of Decision dated 11 August 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  As the applicant was late in filing the Notice of Appeal/Petition, the Board had to decide under section 37ZT of the Immigration Ordinance, Cap 115 whether to allow the late filing of the notice.

6.  In its decision dated 22 December 2017 (“Board’s Decision”), the Board considered the applicant’s explanation for the delay and held that the delay was not excusable. The Board refused to allow the late filing of the notice.

The judge’s decision

7.  The applicant filed a Form 86 on 27 December 2017 which contained no ground for seeking relief. 

8.  In the affirmation in support of the leave application dated 27 December 2017, the applicant said only that the Board’s Decision “is not fair and unreasonable” without giving any particulars.

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

10.  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 [20] to [23] of the CALL-1 Form:

“20. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

21. There were no grounds of review save for a general allegation that the Adjudicator had been unfair and unreasonable. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

22. I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. In so doing, I have considered not only the refusal by the Adjudicator but also the Decision and the basis of the Applicant’s claim. Despite the onus being upon the Applicant, the Director engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. The onus was on the Applicant to file his Notice of Appeal in a timely fashion and, if he failed to do so, give reasons for why a late filing should be allowed. He failed to do so in all respects. There is no criticism of the determination of the Director, nor of the determination of the Adjudicator.

23. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review of the decision of the Adjudicator to refuse to allow late filing of his Notice of Appeal and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 4 October 2018, the only ground of appeal stated by the applicant was to contend that “My life is danger in my origin country in India that’s why I cannot take risk in my life as a human being I have right to living this earth”.

12.  The applicant filed an affirmation dated 4 October 2018 in support of his appeal.  However, the affirmation only exhibited the CALL‑1 Form.

13.  The applicant failed to comply with the direction made by this court on 9 November 2018 requiring him to lodge skeleton submissions by 31 December 2018, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

14.  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.

15.  The hearing date on 30 January 2019 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

16.  The only ground of appeal is the bare assertion by the applicant that it is not safe for him to return to India.  This is not a valid ground of appeal at all. In any event, the Director observed at [15] of his decision that the risk of harm is low.  As we have stated on many previous occasions, a judicial review does not operate as an appeal against the factual findings of the Director and the Board, who are the primary decision makers on questions of fact.  Judicial review lies to correct legal or procedural errors (if any are identified) in their decision making process.  Like the judge, we cannot find any error of law or procedure in the Director’s Decision, and nor can we find any such errors in the determination by the Board to refuse the late filing of the proposed appeal to it.  We would accordingly dismiss the appeal.