RE RAJ KUMAR KUMHAL

CACV 286/2018

[2018] HKCA 761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 286 OF 2018

(ON APPEAL FROM HCAL NO. 545 of 2017)

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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 22 June 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 11 August 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 26 February 2015 and 16 June 2017 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 9 October 2018.  On 12 September 2018, Chu JA directed the applicant to lodge with the Court his written argument by 26 September 2018, and further ordered that if he failed to do so, he shall be deemed to have waived his right to an oral hearing, in which case the hearing date shall be vacated and the Court shall proceed to consider his appeal on paper.  The directions were communicated to the applicant by the letter dated 13 September 2018. 

3.  The requirement to lodge written argument in an appeal is prescribed by Practice Direction 4.1.  Written arguments are important for the preparation of an appeal, both for the judges and the litigants.  Due compliance with the requirement to lodge written argument is important for the proper and effective functioning of the appeal process since 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.  This Court has taken a firm stance on the requirement to lodge written argument.  Failure to comply with the requirement after being warned of the consequence of non-compliance, is treated as the abandonment of the right to an oral hearing. 

4.  As the applicant has failed to comply with direction to lodge written argument, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

5.  The applicant is a Nepali national.  He entered Hong Kong illegally. On 1 September 2010, he was arrested by the police.  On 4 September 2010, he raised a non-refoulement claim on the basis that if he were refouled to Nepal he would be harmed or killed by the Maoists as he had refused to join them or to donate money to them. 

6.  In brief, the applicant said he came from a wealthy and reputable family in a village in Nepal.  Sometime in about 2002 or 2003, he was approached by a group of Maoists and asked to join their party.  He refused and was attacked and threatened by them.  In 2005, fearing for his personal safety, he left for Malaysia and worked as a labourer.  In 2009, he returned home.  The Maoists soon demanded him to give them money and threatened to kill him if he refused.  He therefore left for Dubai in December 2009.  He returned to Nepal in January 2010 because he was unable to find a job there.  After his return, the Maoists continued to demand money from him and threatened to kill him if he did not meet their demand.  Eventually, in July 2010, he left Nepal for China and later made his way from Shenzhen to Hong Kong.

7.  By a Notice of Decision dated 26 February 2015, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3].  By letter dated 4 May 2017, the Director invited the applicant to submit additional information relevant to a BOR 2 risk[4] assessment.  Not having received any response from the applicant by the deadline, the Director proceeded to make a BOR 2 risk assessment on the basis of materials previously provided by the applicant.  By a Notice of Further Decision dated 16 June 2017, the Director decided against the applicant.

8.  The Board heard the applicant’s appeal against the Director’s decisions on 14 October 2016 and 21 July 2017.  By its decision dated 11 August 2017, the Board dismissed the appeal.  For the reasons set out in [30] to [46] of the decision, the Board did not find the applicant’s account to be credible.  The Board did not accept that the applicant had the perceived fear of being harmed by the Maoists when he left for Malaysia, when he went to Dubai and when he left for mainland China from where he came to Hong Kong. Credibility aside, the Board considered that with the availability of state protection and internal relocation options, the future risk of harm to the applicant was very low.       

9.  The applicant filed a Form 86 together with a supporting affirmation on 24 August 2017 to seek leave to apply for judicial review against the decision of the Board.  In both documents, he asserted that the Maoists were a very dangerous group and reiterated his claim that they had made many threats to him and his family. 

10.  The Judge refused to give leave and gave his reasons in the Form CALL-1 dated 22 June 2018, [2018] HKCFI 1372.  In short, the Judge was of the view that there was no error of law or procedure or procedural unfairness in the process before the Director and the proceedings before the Board, and the intended judicial review had no prospect of success. 

11.  In the Notice of Appeal filed on 4 July 2018, the applicant stated he was still having problem with the Maoists and his life would be in danger.  He also said he had supporting documents, but he was never given enough time to submit documents. 

12.  The matters advanced in the Notice of Appeal do not constitute proper grounds of appeal.  Firstly, the Board had rejected the applicant’s case and did not accept he was under any fear of harm or threat when he left his home country.  Merely asserting that his life would be in danger if refouled cannot serve to advance his claim. 

13.  Secondly, the complaint of not being given sufficient time to adduce documents was not raised in the application for leave to apply for judicial review, and no reason has been given for its omission.  It is not open to the applicant to raise this new ground on appeal. 

14.  Thirdly, apart from being a new point, this complaint has no merits.  The applicant was legally represented in the compilation of his non-refoulement claim form and at the interview with the immigration officer. He also had two hearings before the Board, which were nine months apart, and he was provided with interpretation service at the hearings.  The applicant’s non-refoulement claim was made in September 2010 and his last hearing before the Board was in July 2017.  In these circumstances, the claim that he was not given sufficient time to adduce supporting documents is untenable.  Further, the applicant has given no particulars of the supporting documents that he wanted to put in.  Nor has he explained why he said he did not have enough time to adduce supporting documents.       

15.  We are of the view that the appeal has no merits.  Accordingly, we dismiss the appeal.