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CACV 323/2020
[2021] HKCA 730
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 323 OF 2020
(ON APPEAL FROM HCAL 2418/2018)
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| RE: |
LAMA PREM KUMAR |
Applicant |
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Before: Hon Barma JA and Au JA in Court
Date of Judgment: 21 May 2021
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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 given on 22 July 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 25 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 6 November 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Nepal. He entered Hong Kong on 27 July 2014 as a visitor and was permitted to remain until 1 August 2014. He overstayed and was arrested on 22 September 2014. He lodged a non-refoulement claim on 24 September 2014.
3. The applicant’s claim was based on threats from the Maoist party in Nepal. The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.
4. By a Notice of Decision dated 6 November 2017 (“the Director’s Decision”), the director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 24 July 2018, the Board dismissed the appeal on 25 October 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.
6. At [62] – [69] of the Board’s Decision, the Board found that the dissolution of the Maoist and the creation of the Nepal Communist Party meant that there would be no likelihood that the applicant would be caused harm upon his return. The Board held that the applicant would not be at risk from any of the proscribed harm ([50], [69], [76] and [86] of Board’s Decision). The Board was also satisfied at [98] that state protection would be available for the applicant and at [103] that internal relocation would be viable.
The judge’s decision
7. The applicant filed a Form 86 on 31 October 2018 which contained no ground for seeking relief.
8. In his affirmation in support of the leave application dated 31 October 2018, the applicant deposed that:
“I am applicant decision marked as Exhibit ‘A’ 36 pages”
9. The applicant made submissions in the hearing before the judge, which was summarized in [14] – [15] of CALL-1 Form:
“14. The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Adjudicator. He can read English himself.
15. I put the Board’s findings above to the applicant and asked him if he had any comments. He said that he had no comments.”
10. After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [16] to [18] of the CALL-1 Form:
“16. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:
‘14. The Director and the Board alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.’
17. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.
CONCLUSION
18. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”
Grounds for appeal
11. In the Notice of Appeal dated 4 August 2020, the applicant contended that:
“I would like to reject and review the decision made by [the Board].
They disregard my dangerous situation.”
12. The applicant agreed by a letter of 4 August 2020 that the appeal could be heard by two judges. The applicant failed to comply with the direction made by this Court on 9 November 2020 requiring him to lodge skeleton submissions 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.
13. 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 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.
14. The hearing date on 1 February 2021 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
15. The only ground of appeal set out in the Notice of Appeal complains of error on the part of the Board, but does not identify any error on the part of the judge. It is therefore not a viable ground of appeal. As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.
16. Further, the applicant did not supply any particulars of the “dangerous situation” that was allegedly ignored by the Board. We have carefully considered the Board’s Decision and we can find no public law error in the Board’s Decision, including the Board’s finding that the applicant will not be subject to any of the proscribed harm upon his return. This ground is therefore without merit.
17. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
(AARIF BARMA)
Justice of Appeal |
(THOMAS AU)
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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