RE JEVANPREET SINGH

CACV 406/2023, [2024] HKCA 387

On appeal from [2023] HKCFI 2920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 406 OF 2023

(ON APPEAL FROM HCAL 1158 OF 2019)

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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 KW Lung (“the Judge”) given on 1 December 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against (i) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 25 April 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 February 2019 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim; and (ii) purportedly the Director’s Decision itself.

Background

2.  The applicant is a national of India. He entered Hong Kong as a visitor on 20 May 2018.  He overstayed and was arrested by immigration officers on 19 September 2018.  Thereafter, he raised a non-refoulement claim on 18 November 2018.

3.  The applicant’s claim was based on a fear of being harmed or killed by his paternal cousins due to a land dispute. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 27 February 2019 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  By reason of the applicant’s express request to the Board that his appeal be dealt with on the papers, an oral hearing was not fixed for the determination of the appeal.  The Board found, inter alia, that many of the alleged injuries inflicted on the applicant by his cousins did not attain the required minimum level of severity.  The applicant’s appeal was dismissed by the Board’s decision dated 25 April 2019 (i.e. the Board’s Decision), which covered all applicable grounds for a non-refoulement claim.

The Judge’s decision

6.  The applicant filed a Form 86 on 30 April 2019 seeking to judicially review the Board’s (and the Director’s) Decision, without setting out any grounds for review.

7.  In his supporting affirmation filed on the same date, the applicant exhibited a copy of the Board’s Decision, and set out his grounds for review, which have been summarised by the Judge at [12] of the CALL‑1 Form:

“a. the Board’s Decision is unreasonable because it did not pay attention to the right to life and he was not given sufficient time to arrange evidence;

b. the Board failed to take into account of state acquiescence as he was tortured; and

c. the Board failed to give proper weight to the COI that support his claim.”

8.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused leave to the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [13] to [19] of the CALL-1 Form: 

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he understood the Board’s Decision and he had asked the Board to deal with his appeal on paper. He asked the Court to give him time to provide evidence.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …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.’

16. The Board, for the reasons given in paragraph 9, had rejected his evidence. The Board further found that state protection would be available to him and internal relocation is an option open to him. Those grounds in paragraph 12 do not assist him. Grounds (1) and (3) are his opinions without any evidence in support. Ground (2) is not true as the Board had taken this issue into account. See paragraph 9.

17. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

19. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 7 December 2023, the applicant set out his grounds of appeal, which may be summarised as follows:

(1)  he would face hardship if he was refouled to India;

(2)  the Board had relied on sources of news which were “not officially recognised”;

(3)  the Board relied on cases which were “outdated considering the dramatic changes” and which lacked “credible source of information”.

10.  In breach of the directions made by the Registrar of Civil Appeals on 23 January 2024, the applicant failed to lodge skeleton submissions with the court 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.

11.  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 the 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.

12.  The hearing date on 9 April 2024 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

13.  The applicant has in his Notice of Appeal failed to identify, with proper particularity, any error on the part of the Judge and thus failed to raise any 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 error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

14.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

15.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

16.  As to the applicant’s grounds of appeal, they are broad-brush criticisms of the Board without particularity as to the nature and extent of the alleged errors committed by it or how such alleged errors are said to have unfairly impacted on the processing and determination of his claim.

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