RE RAJAT KUMAR

CACV 324/2021

[2021] HKCA 1816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 324 OF 2021

(ON APPEAL FROM HCAL 2037/2018)

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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 Bruno Chan (“judge”)  given on 17 June 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 20 September 2018 (“Board’s Decision”)  dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”)  dated 27 November 2015 and 15 June 2017 rejecting the applicant’s non-refoulement claim (“Director’s Decisions”).

Background

2.  The applicant is a national of India.  He last arrived in Hong Kong on 7 May 2013 and was permitted to remain as a visitor until 11 May 2013.  He overstayed and was arrested by the police on 17 November 2013.  Thereafter, he lodged a non-refoulement claim on 20 November 2013.

3.  The applicant’s claim was based on a fear that, if refouled to India, he would be harmed or killed by his paternal uncle, Janak Raj, because of his refusal to sign a loan agreement with him.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the judge’s decision[1].

4.  By a Notice of Decision dated 27 November 2015 and a Notice of Further Decision dated 15 June 2017 (i.e. the Director’s Decisions), the Director decided against the applicant’s claim.  The Director’s Decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board.  After a hearing on 12 April 2018, the Board dismissed the appeal on 20 September 2018 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found the applicant’s evidence to be inconsistent and incredible, and that he did not give a truthful or reliable account of events which took place before he departed from India.

The judge’s decision

6.  The applicant filed a Form 86 on 26 September 2018 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.

7.  In the applicant’s supporting affirmation, he deposed:

“I can’t go back to my country at this moment. Because my life is not safe in my country. Please help me to stay in Hong Kong until I have problem.”

8.  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 grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [15] of the CALL-1 Form:

“9. In its decision the Board found significant inconsistencies and contradictions in the Applicant’s evidence regarding his dispute with his uncle over the loan agreement that it considered them to be inherently implausible and unrealistic to the extent that it was not persuaded that the Applicant had given a truthful or reliable account of events before he left India that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

10. On 26 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he cannot return to his home country as his life would be in danger there but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his 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 his intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 66 – 79 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 25 June 2021, the applicant contended that:

(1)  the court and authorities did not exercise caution or diligence in handling his case as a self-represented litigant and as a result there was procedural unfairness;

(2)  the judge failed to acknowledge or consider the significance of his “language incapability”, that he was unable to read and write English and was not provided with “any language or legal assistance”;

(3)  without legal and/or language assistance, he was unable to identify errors of the Board’s Decision; and

(4)  it was unfair for the court not to have fixed a hearing for his application for leave to apply for judicial review.

10.  The applicant did not file an affirmation in support of the Notice of Appeal.

11.  In breach of paragraph 4(1)  of the directions given by the Registrar of Civil Appeals on 13 July 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 6 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

12.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance 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 a 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 is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 22 November 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.  The applicant’s primary complaints stated in the Notice of Appeal relate to alleged procedural unfairness by reason of his lack of legal and language assistance in the proceedings below.

15.  We note that in this case, the applicant was assisted by an interpreter in filling out his non-refoulement claim form.  The applicant has also been able to lodge a Notice of Appeal in English, and therefore appears to have access to language assistance.  We therefore do not think there is merit in the complaint concerning lack of language assistance.

16.  Further, the applicant already had the benefit of legal representation from the Duty Lawyer Service in presenting his case to the Director, including the submission of his non-refoulement claim form and at his screening interview with the Director on 6 November 2015.  As this court has held, it does not follow from the application of high standards of fairness that a non-refoulement protection claimant is absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

17.  As to the applicant’s contention of unfairness arising from the lack of an oral hearing before the judge, we note that it was the applicant himself who did not make such a request.  The judge, accordingly, proceeded to deal with his application on paper.  There is nothing in this complaint.

18.  The applicant has failed to identify any error of law by the judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either. 

19.  The applicant’s assertions stated in the Notice of Appeal, in particular his allegation that the judge did not exercise caution or diligence in handling his case, are too vague to merit consideration.  These grounds should also be dismissed for this reason.

20.  In any event, we have anxiously scrutinised the Board’s Decision and the judge’s decision and are satisfied that they are both in order.

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