RE RE TULACHAN BAM PRASAD

CACV 7/2019

[2019] HKCA 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 7 OF 2019

(ON APPEAL FROM HCAL 246 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 3 January 2019 (“the Deputy Judge’s Decision”) [2018] HKCFI 2861, refusing leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 1 February 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 2 August 2016 (“the Director’s Frist Decision”) and 11 September 2017 (“the Director’s Second Decision”).

2.  The appeal was listed to be heard on 14 May 2019.  The applicant was directed to lodge three sets of skeleton argument by 12 April 2019 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 19 March 2019.

3.  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.

4.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated.

5.  However, by a letter dated 14 May 2019 (received by the court on 15 May 2019), the applicant wrote to the court and stated that he “completed his Skeleton Submissions for the hearing on 10 April 2019 and submitted to Court.” He said he was only “informed today that the court hearing has been vacated because the Court did not receive any Skeleton Submissions.”  He said he did not know for what reasons why the court did not receive it.  In support, he attached to his letter a copy of the screenshot of a computer screen which “bears [his] Appeal file which proves that the Skeleton Submission was indeed created on 10 April 2019”.  He therefore asked for another hearing to be arranged prior to the handing down of a judgment.  To the letter, he also attached a copy of the skeleton submission.

6.  We are unable to accept this explanation.  For the following reasons, we do not find credible the applicant’s allegation that he indeed lodged his skeleton submissions on or about 10 April 2019.

7.  First, the applicant has simply failed to provide any details as to how he had allegedly submitted his skeleton submission to court.

8.  Second and more importantly, upon the applicant’s failure to file his skeleton submission as directed, the court by a letter dated 16 April 2019 (sent by post and registered post) informed the applicant that the hearing on 14 May 2019 was vacated as he had failed to lodge his skeleton submission.  This letter was sent to the address provided by the applicant.  This is also the same address to which various directions and the Notice of Hearing were sent by the court to the applicant, which he had duly received.  In the premises, by the latest some time around 20 April 2019, the applicant must have had notice that the hearing date was vacated because of his failure to file his skeleton submission.  If he had indeed already submitted his skeleton submission on 10 April 2019 as now alleged, there would be no reason at all why he did not immediately write to the court at that time to say that he had already submitted the skeleton submission.

9.  We therefore reject his request for fixing another oral hearing of this appeal.  We will proceed to consider this appeal on paper based on the available materials, including the skeleton submission now submitted by the applicant under the letter dated 14 May 2019.

Background

10.  The applicant is a national of Nepal.  He entered Hong Kong on 22 September 2012 and was permitted to remain as a visitor until 29 September 2012.  He overstayed and was arrested by the police on 15 March 2015.  He lodged a non-refoulement claim on 17 April 2015.

11.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 12 - 33 of the Board’s Decision.

12.  Briefly stated, the applicant claimed that if he were to return to Nepal, he would be harmed or killed by Giri Sherchan (“GS”).  The applicant claimed that he paid money to GS for employment opportunities in Japan in around 2004.  In around 2005, GS informed the applicant that he failed to obtain a Japanese visa for the applicant and promised to refund the applicant.  However, GS failed to refund the money and disappeared.  Eventually, the applicant and his friends was able to locate GS and injured him.  GS reported the assault to the police and started to threaten the applicant for revenge via telephone calls.  He further claimed that GS seized the applicant’s family land and is still looking for him.  He also feared that the local police will arrest him for the assault back in 2005.

The Director’s Decisions and the Board’s Decision

13.  By the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. The Director’s Second Decision assessed the BOR 2 risk[4].

14.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 22 December 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board dismissed the applicant’s claim.

10.     The Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds.  The Board was of the view that the applicant’s claim lacked credibility.  The fact that he could still seek repayment from GS after the assault and threats, together with the fact that he could still live in the same area for around 5 - 6 years, showed the fear was not credible (paragraph 40(b) of the Board’s Decision).  The Board also found that internal relocation was available to the applicant (paragraphs 45 - 48 of the Board’s Decision).  Thus, the Board dismissed his appeal based on the lack of credibility on the applicant’s account, as well as on the basis of internal relocation.

The Deputy Judge’s Decision

11.     The applicant filed a Form 86 on 14 February 2018 seeking leave to apply for judicial review against the Board’s Decision.  He also filed a supporting affirmation on the same date.  The Deputy Judge had succinctly summarized the applicant’s grounds for judicial review at paragraph 11 of the Deputy Judge’s Decision:

“11.     On 14 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he mainly copied or repeated various paragraphs from the Board’s decision but from which the following grounds can be discerned for his intended challenge summarized as follows:

(1)  that the adjudicator failed to meet the high standard of procedural fairness in seeking to challenge the applicant’s credibility at the oral hearing;

(2)  that the adjudicator failed to maintain high standard of procedural fairness by taking account of irrelevant considerations in assessing and rejecting his claim;

(3)  that the adjudicator failed to give proper reasons or analysis in his decision in assessing and concluding that the applicant’s experience in Nepal did not amount to torture and that there were no substantial grounds that he would be subjected to torture if refouled to his home country; and

(4)  that the adjudicator failed to rely on Osborn v The Parole Board [2013] UKSC 61 as to the importance of conducting an oral hearing in the consideration of the applicant’s claim.”

12.     The Deputy Judge heard the leave application on 19 September 2018.  Having considered the documents and the applicant’s oral submissions, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 12 - 16 of the Deputy Judge’s Decision:

“12.  These are however mainly just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator take into account of irrelevant COI, or how did the adjudicator fail to apply high standard of fairness in considering his claim, or what relevancy was the case or principles of Osborn to the applicant’s case when the adjudicator clearly held an oral hearing during which the applicant was able to make representations of his claim with the assistance of an interpreter. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.  The fact is that the applicant’s claim was rejected by the adjudicator essentially on his credibility with the benefit of hearing him in evidence and for the detailed analysis and reasoning set out in paragraphs 36 – 42 of his decision in which no legal error or procedural unfairness or irrationality has been clearly or properly identified by the applicant, as it 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 being 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 Re Litoun Mounsy [2018] HKCA 537.

14.  Further, as it has also been established by both the Director and the Board in their respective decisions 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 Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2012] HKCA 502; [2013] 1 HKC 526.

15.  In the premises and having proceeded to consider 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.

16.  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

13.  The applicant filed the Notice of Appeal dated 9 January 2019 to appeal the Deputy Judge’s Decision.  He has advanced his grounds of appeal as follows:

“1. The Deputy Judge has failed to conduct a proper and fair hearing.

2. Whilst there was an oral hearing arranged, the Deputy Judge merely confirmed my personal particulars and did not ask me any questions or discuss any particular of my application.

3. The reason for requesting for an oral hearing is because I do not have the capability to provide elaborations in full in writing and therefore it would be most comfortable for me to speak in my first language. However, the Deputy Judge did not ask any questions.

4. I have come to understand that the Deputy Judge has commented that my grounds are ‘broad and vague assertions’, and therefore the oral hearing would have been the only feasible opportunity for me to elaborate. The failure to let me have this opportunity is unfair.

5. I request to have the case redirected to the Court of First Instance with an oral hearing and interpreter arranged.”

15.  In his skeleton submission, the applicant merely repeats these grounds verbatim at paragraphs 4 - 8 and says at paragraph 9 that he seeks reconsideration of his case on the basis of procedural unfairness.

14.  Effectively, the applicant complains that the oral hearing was unfair because the Deputy Judge failed on his own to solicit from the applicant the particulars in support of the grounds of judicial review.  The applicant asserts that this was procedurally unfair as (1) he was not capable of providing elaboration in full in writing and had to speak in his first language; (2) he only later realised from the Deputy Judge’s Decision that the Deputy Judge found his grounds of judicial review were “broad and vague assertions” as the Deputy Judge did not ask him about that in the hearing.

Discussion

15.  Judicial review is not a rehearing or re-assessment of the merits of an applicant's non-refoulement claim.  The function of the judge in judicial review is to review the legality and rationality of the decisions of the Board or the Director, who are the primary decision makers, and the propriety and fairness of the process by which the decisions are arrived. The burden is on the applicant in a judicial review to show there are proper grounds on which the Court may grant the relief he sought: Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  Bearing these principles in mind, the applicant’s complaint against the Deputy Judge for procedural unfairness is misconceived.

16.  The Deputy Judge already held an oral hearing for the applicant.  The applicant was free and had the full opportunity to explain or make submissions orally to the Deputy Judge at the hearing on whatever details he wished to say in support of his complaints about the Board’s Decision which he said he was unable to set out in writing.  If he did not do so himself, it cannot be a legitimate complaint that the Deputy Judge should somehow take his own initiative to ask the applicant for details.

18.  In any event, as to his alleged incapability to provide elaboration in full in writing, we note that the applicant had filed the Form 86 and the supporting affirmation in English and he was assisted in court by a Nepalese interpreter. He is therefore either reasonably proficient in English or has had access to language assistance.  He also has not demonstrated what those alleged details or particulars which he somehow could not set out in writing are.  In particular, even by now, he could not even describe what is the nature of these alleged details or particulars.  There is clearly no substance in this complaint of procedural unfairness.

20.  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 error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  It is plainly right for the Deputy Judge to hold that the Board had made no errors in law or procedure.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

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