RE DHARAM PAL

CACV 349/2018

[2018] HKCA 963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 349 OF 2018

(ON APPEAL FROM HCAL NO. 1156 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 Josiah Lam (“the Judge”) given on 16 July 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 13 January 2017 rejecting his non-refoulement claim and also the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 15 December 2017 dismissing the applicant’s appeals against the Director’s decision.    

2.  The applicant’s appeal was scheduled to be heard on 14 December 2018.  The applicant was directed to lodge his written skeleton argument by 16 November 2018 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 Notice of Hearing dated 31 October 2018. 

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 first came to Hong Kong in 1993 and had worked in Hong Kong between 1993 and 1996, and from March 1996 to 1998.  When he came to Hong Kong again on 24 August 2009, he was refused entry.  He lodged a torture claim which was withdrawn on 29 May 2013, and he was repatriated to India on 19 June 2013.  The applicant later entered Hong Kong illegally, and was arrested by the police on 25 January 2015.  He applied to re-open his claim.  After considering his various written representations, the Director permitted the applicant to make a subsequent claim.  He lodged his non-refoulement claim on 23 March 2016.

5.  The applicant’s claim is based on his fear of being harmed or killed by the Shiromani Akali Dal (“SAD”) party members because he was the leader of the Congress Party (“CP”) supporters in his home area and had control of many votes, and also as a result of his refusal to join the SAD.  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 [3] to [14] of the Form CALL-1 dated 16 July 2018, [2018] HKCFI 1561.    

6.  In gist, after returning home in 1999, the applicant became an active supporter of CP.   In January 2007, after he refused to join the SAD, he was attacked and severely assaulted by SAD members.  He then went into hiding and fled to Singapore and Nepal before returning to India in mid-2008. He did not go home and came to Hong Kong in August 2009.  He withdrew his torture claim and returned home in 2013 because his parents were injured in a car accident.  However, in September 2014, he was badly assaulted, robbed and dumped in a bush by some men who claimed they were sent to kill him.  Fearing for his safety, he went to mainland China from where he sneaked into Hong Kong.

7.  By a Notice of Decision dated 13 January 2017, 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 8 November 2017, during which the applicant had answered questions put by the Board.  By its decision dated 15 December 2017, the Board dismissed the appeal.  In short, the Board did not accept the credibility of the applicant’s claim.  It considered that even though the applicant might have been involved in CP, it was at a low level as a mere supporter and not a member.  Given his low level involvement and considering that CP has regained power in the Punjab, where the applicant came from, the Board was not satisfied that there was a real risk of the applicant being subjected to harm, torture or persecution that would entitle him to protection under the applicable grounds.  The Board was also not satisfied that the applicant’s claim engages BOR 2.       

9.  The applicant filed his Form 86 together with a supporting affirmation on 29 December 2017 to seek leave to apply for judicial review against the decisions of both the Director and the Board.  At the applicant’s request, an oral hearing was held on 8 June 2018 to hear the application. 

10.  The applicant relied on three grounds to seek relief.  They were:

(1) Lack of legal representation in the appeal to the Board.

(2) Lack of language assistance.

(3) There was no fair hearing before the Board. 

11.  For reasons given in [35] to [41] of the Form CALL-1, the Judge considered the grounds were not reasonably arguable and the intended judicial review had no prospect of success, and refused to give leave to apply for judicial review:

“Lack of legal representation

35. The Applicant complained that he had not been provided with sufficient legal assistance. He had legal assistance from the Duty Lawyer Service up to the Director's decision coming out on 13 January 2017.

36. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[7] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

37. The Applicant complained he had not been given sufficient interpretation/ translation assistance.

38. The Applicant said he met his wife in 2012. They had stayed together since then and got married in 2018. His wife knew English well. I am sure the Applicant's wife would help the Applicant with the interpretation and translation of English documents for his claim and appeal. The Applicant, therefore, cannot say he had no means to find out if there was any mistranslation/misinterpretation in his non-refoulement claim form (“NCF”). He was only speculating. I am sure the Applicant has much exaggerated his language problem.

Lack of fair hearing

39. The Applicant criticised the Director for failing to attend the appeal hearing before the Board on 8 November 2017.

40. The Director was excused from attendance in that hearing. The Applicant failed to show how the Director's absence would prejudice his appeal.

41. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

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[7] CACV 284/2017 Re: Paswan Shibu Lal, para 21.”  

12.  In the Notice of Appeal filed on 27 July 2018, the applicant referred to his affirmation filed on the same day in which he gave the following grounds of appeal (“Grounds of Appeal”):

(1)   The Judge was wrong in law in holding that there was no state acquiescence or involvement.

(2)   The Judge failed to provide detailed reasons in support of his decision.

13.  The exhibit to the affirmation (Exhibit A) recited the relevant law, which was followed by a section with the heading “Summary of the Grounds of Review Challenging the Adjudicator’s (Respondent) Decision”, that contained the following nine grounds of judicial review (“Nine Grounds”):

(1)   The Board misdirected itself on the law by considering that the applicant had to experience torture in the past to establish substantial grounds for believing there was a risk of torture in the future. 

(2)   The Board failed to carry out sufficient research and inquiry into the relevant and up-to-date country of origin conditions.

(3)   The Board failed to consider and to put weight on highly relevant country of origin information (“COI”), and had relied on outdated COI.

(4)   The Board failed to evaluate and make finding as to whether there exists in India a consistent pattern of violation of human rights.

(5)   The Board failed to analyse and assess whether state protection exists in India, and further erred in stating the extended meaning of state protection.

(6)   The Board took into account and put weight on irrelevant considerations and failed to take into account and put weight on facts and inferences favourable to the applicant.

(7)   The Director and the Board failed to call for psychological and psychiatric assessment of the applicant.

(8)   The Board applied the incorrect standard of proof.

(9)   The failures of the lawyer assigned by the Duty Lawyer Service resulted in a lack of and/or insufficient legal representation for the applicant.  

14.  The Grounds of Appeal are unarguable. 

15.  Firstly, Ground (1) bears no relevance to this case in that the Judge made no reference at all to state acquiescence or involvement in his reasons, let alone making any holding on this. 

16.  Secondly, as can be seen from [11] above, there is no valid basis for the complaint in Ground (2) that the Judge did not give sufficient reasons for his decision.

17.  As to the Nine Grounds, Grounds (1) to (8) had never been raised in the Form 86 or the accompanying affirmation, and were not argued before the Judge.  In respect of the Ground (9), although the applicant had complained of lack of legal representation before the Judge, it was on the basis that he did not have legal representation after his claim was refused by the Director.  The complaint in Ground (9), however, was on entirely different basis, namely, failures on the part of the lawyer assigned by the Duty Lawyer Service, and with no particulars given.  As such, this is also a new argument.

18.  An appeal to the Court of Appeal does not operate as a rehearing.  Generally, an appellant will not be permitted to advance grounds and arguments that had not been raised in the court below.[5]  No good reason has been given by the applicant, and we see no basis, for exceptionally allowing the applicant to argue the eight new grounds.    

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