RE PASWAN SHIBU LAL

CACV 284/2017

[2018] HKCA 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 284 OF 2017

(ON APPEAL FROM HCAL NO 669 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 5 December 2017 in HCAL 669/2017 refusing leave to the applicant to apply for judicial review. The applicant had previously applied for judicial review on the same matter in HCAL 122/2017 and leave was, on that occasion, refused by Deputy High Court Judge Woodcock on 8 September 2017.

2.  The applicant is an Indian national who arrived at Hong Kong from India on 6 January 2015.  His permission to remain here expired on 20 January 2015.  Since then he overstayed illegally.  He was arrested on 4 February 2015.  On 6 February 2015 he lodged a non-refoulement claim.  The applicant claims that he will be harmed or killed by members of his family and others because of a land dispute.

3.  The Director decided against the claims on 12 November 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director’s Decision”).  By a Further Decision of 29 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

4.  On 26 November 2015, the applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 17 January 2017, the Board dismissed the appeals on 9 March 2017 (“the Board’s Decision”).

5.  On 6 April 2017, the applicant sought leave to apply for judicial review of the Board’s Decision in HCAL 122/2017.  Deputy High Court Judge Woodcock refused leave on 8 September 2017. There was no appeal against that decision. 

6.  On 25 September 2017, the applicant again sought leave to apply for judicial review in HCAL 669/2017.  The intended judicial review was also in respect of the Board’s Decision.  The Form 86 filed by the applicant on 25 September 2017 gave the following grounds:

(1) The hearing bundle was given to the applicant 6 days before the Board hearing.  The applicant did not have time to seek assistance in understanding the English hearing bundle.

(2) The Board has a duty to act fairly.  The applicant did not expand on this ground.

(3) The applicant was not legally represented after the Director’s Decision.  He did not know that he could have complained to the Board about the late provision of hearing bundle by the Director.

7.  In his affirmation of 25 September 2017, he said that the leave application in HCAL 122/2017 was refused “due to lack of presentation”.  He asked the Court to consider the leave application in HCAL 669/2017 “as a fresh application”.

8.  The judge gave the following reasons in refusing leave at [1] to [3] the CALL-1 Form of 5 December 2017:

“ 1. This application has been dealt with and leave refused on 8 September 2017. This court no longer has jurisdiction to deal with it again, this court is functus officio.

2. The proper course of action should have been an appeal to the Court of Appeal as the applicant sees fit and as permitted under the rules.

3. This leave application is therefore refused.”

9.  In the notice of appeal of 13 December 2017 concerning the decision of 5 December 2017 in HCAL 669/2017, the applicant repeated the same grounds in the Form 86.

10.  The applicant agreed by a letter of 14 December 2017 that the appeal can be heard by two judges.

11.  The applicant did not comply with the directions made on 8 March 2018 that he should lodge skeleton argument on or before 26 March 2018.  No skeleton argument was ever lodged despite the Court’s direction that that applicant would be treated as waiving his right to an oral hearing if he did not lodge skeleton submissions in accordance with those directions and the Court would then process the appeal on paper.

12.  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 by the judges and the litigants. The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge at 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. Nowadays, this Court will no longer permit unfocused oral presentation of material at an oral hearing. In view of the heavy demand on court’s time due to 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.  

13.  The hearing date of 25 April 2018 was therefore vacated when the applicant failed to comply with the unless order of 8 March 2018 in not lodging skeleton submissions by 26 March 2018.  We have processed the appeal on the basis of the materials already lodged by the applicant.

14.  Having considered the materials before us, we agree with the judge’s observations.

15.  The applicant commenced HCAL 669/2017 about 2 weeks after the CALL-1 Form in HCAL 122/2017 was handed down.  The applicant did not provide any reasonable explanation for initiating separate proceedings on the same matter.  This is a blatant attempt to re-litigate the same matter and an abuse of the Court’s process (see Ng Yat Chi v Max Share Limited & Anor (2005) 8 HKCFAR 1 at [2]).

16.  This is not the first occasion where the applicant sought to abuse the Court’s process.  At [3] of CALL-1 Form in HCAL 122/2017, Deputy High Court Judge Woodcock noted that “It is clear [that the applicant] knew he could apply for legal aid … The only reason for the timing of the late application [for legal aid] is to delay the hearing by at least 42 days.  This applicant is abusing the process”.

17.  Further, the applicant did not give any good reason why leave to apply for judicial review should be granted when more than 6 months had passed since the Board Decision.  This appeal should be dismissed for the reasons above.

18.  In any event, the grounds raised in the Form 86 are devoid of merit.  For Ground 1, the applicant was unable to point to any real prejudice he suffered as a result of the timing of the delivery of hearing bundle. He complained of his inability to find a “cheap” interpreter before the hearing and that the interpreter at the Board hearing “simply interpreted the questions asked by the adjudicator during the hearing…The interpreter is under no duty to explain anything except word to word literal interpreter”.  He said “with prior interpretation of [question 35 of the non-refoulement claim form], he would have elected to give evidence”. 

19.  If the applicant were genuinely concerned with whether he should testify before the Board, he should have sought translation and legal advice well before the Board hearing.  He should have approached the Duty Lawyer Service for assistance as he had already received their services when his claim was evaluated by the Director.

20.  Ground 2 appears to be related to Ground 1 only and is not a free-standing ground.

21.  As for Ground 3, this Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.

22.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process. We agree with the judge that leave to apply for judicial review should not be granted.

23.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.