RE GURJANT SINGH

CACV 24/2020

[2020] HKCA 685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 24 OF 2020

(ON APPEAL FROM HCAL NO. 139 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 8 January 2020 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 17 November 2016 rejecting his non-refoulement claim and also the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 23 January 2018 dismissing the applicant’s appeals against the Director’s decision.    

2.  The applicant’s appeal was scheduled to be heard on 10 August 2020.  The applicant was directed to lodge his written skeleton argument by 13 July 2020 and further warned that if he failed to do so, he shall be deemed to have waived his right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 22 May 2020 and the Notice of Hearing dated 19 June 2020. 

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by 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.  In the present case, as the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.      

4.  The applicant is an Indian national.  He arrived into Hong Kong on 22 September 2015 and was given permission to remain as a visitor until 24 September 2015.  He overstayed.  On 13 October 2015, he surrendered to the Immigration Department and raised a non-refoulement claim.

5.  The applicant’s claim is based on his fear of being harmed or killed by his paternal uncles over a land dispute. The applicant’s case was set out in detail in the Director’s decision and also the Board’s decision, and summarised by the Judge in [2] to [11] of the Form CALL-1 dated 8 January 2020, [2020] HKCFI 59.    

6.  In gist, the applicant was assigned some plots of land by his father.  In about 2014, a dispute broke out between the applicant and his uncles, who own the adjacent land plots, over the uncles’ plan to build a factory that would extend into the applicant’s land.  The applicant said his complaints to the village head were to no avail because his uncles were associated with wealthy and powerful people and politicians.  He claimed that one day in 2015, he was assaulted by gangsters whom he believed were sent by his uncles.  After his discharge from the hospital, his uncles filed a false complaint against him leading to his arrest and detention by the police.  After his release, his uncles came with a group of armed gangsters and threatened to kill him if he did not give up his land.  This was followed by an attack on him and his brother by his uncles’ men in July 2015.  Fearing for his personal safety, the applicant left his village and later departed for Hong Kong.   

7.  By a Notice of Decision dated 17 November 2016, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].   

8.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 30 November 2017, during which the applicant had answered questions put by the Board.  By its decision dated 23 January 2018, the Board dismissed the appeal.  In short, the Board did not fully accept the applicant’s claim.  It accepted that the applicant had a land dispute with his uncles but did not accept that the dispute had escalated to the level claimed by the applicant.  The Board did not accept there was a real risk that the applicant would suffer harm from his uncles if he were to return to his country.  The Board was further satisfied that internal relocation was reasonably available to the applicant.      

9.  The applicant filed his Form 86 together with a supporting affirmation on 30 January 2018 to seek leave to apply for judicial review against the decisions of both the Director and the Board.  The Form 86 did not set out any ground for seeking relief.  The supporting affirmation stated that the Director’s and the Board’s decisions were incorrect as they had failed to consider the real situation in India, but did not provide any particular or elaboration.    

10.  At the applicant’s request, an oral hearing was held on 30 August 2019 to hear the application.  By his decision of 8 January 2020, the Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success.  He gave his reasons given at [16] to [19] of the Form CALL-1 as follows:

“16. On 30 January 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he merely stated that their decisions were incorrect in that they failed to consider the realities in India before reaching their decisions, but he did not provide any particulars or specifics or elaborations as to how they did so, and that it is clear from their decisions that the relevant COI on India had indeed been fully and properly considered by both the Director and the Board, and that given the nature of the Applicant’s claim that even on his own case that it was a private family dispute without any official involvement, I do not find any basis or merit in this complaint of the Applicant, nor do I find this ground reasonably arguable for his intended challenge.

17. As has been repeatedly emphasized by the Court of Appeal, 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.

18. The fact is that it has been established by both the Director and the Board in their respective 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 part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.   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.”  

11.  In the Notice of Appeal filed on 16 January 2020, the applicant stated the following as his grounds of appeal:

(1) The hearing of the Board was not fair.

(2) He still faces danger to his life in India.  

12.  The grounds of appeal are unarguable.  The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].    

13.  In the present case, the applicant has not identified any error in the Judge’s decision and reasons.  In light of the Board’s finding that he had exaggerated his claim and that internal relocation was reasonably open to him, the applicant’s assertion that he would be in danger if refouled to India cannot stand.  Although he complained that the hearing before the Board was unfair, the applicant had given no particulars to substantiate it. We have considered the papers and the Judge’s decision, we do not discern any proper basis to interfere with the Judge’s refusal to grant leave to apply for judicial review.

14.  For the above reasons, the appeal has no merits.  Accordingly, we dismiss the appeal.