RE MD HASNAIN

CACV 353/2018

[2018] HKCA 982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 353 OF 2018

(ON APPEAL FROM HCAL NO. 953 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 20 July 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 1 September 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 20 November 2015 and 21 February 2017 rejecting his non-refoulement claim.

2.  The appeal was listed to be heard on 14 December 2018.  The applicant was directed to lodge a skeleton argument by 16 November 2018 and also 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 was communicated to the applicant in 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.  On 18 December 2013, he came to Hong Kong and was permitted to remain as a visitor until 1 January 2014.  He overstayed and surrendered to the Immigration Department on 14 January 2014.  He lodged a non-refoulement    protection claim on 12 March 2014 based on his fear that, if refouled to India, he would be harmed or killed by the father of his friend because of his failure to repay a loan he took from the friend.   

5.  The basis of the applicant’s claim, as summarised by the Judge in [3] to [7] of the Form CALL-1 dated 20 July 2018, [2018] HKCFI 1694, is as follows:

“3. In February 2012 he borrowed 400,000 Indian Rupees from his good friend RY, whose father was a wealthy and influential man in the neighbourhood, with interest payable on a monthly basis, of which the applicant managed to do until 2013 when he suffered heavy losses in his business and had to plead with RY for more time for his loan repayment, and to which RY agreed to give him one more month to do so.

4. However, one month later when the applicant was still unable to repay his loan, he was attacked by RY and his men with wooden sticks and cricket bets until they were stopped by the neighbours, and the applicant had to receive treatment to his head injury, but he did not report the attack to the police as he did not think that his injury was serious.

5. Several weeks later RY and his men again came to the applicant’s house demanding for loan repayment, and when the applicant was still unable to do so, he was again attacked by RY and his men with knives and cricket bets that he suffered injuries to his head and left wrist, and before he left RY threatened to kill the applicant if next time he still failed to repay his loan.

6. After that attack the applicant asked his uncle to report it to the police, but when his uncle arrived at the police station, the father of RY was already there making a complaint to the police of the applicant’s failure to repay his loan to RY. Several days later the police came to the applicant’s home to suggest that the applicant settle his dispute with RY, but when the applicant insisted with his complaint against RY for attacking him, and when the police were unable to find any witnesses from the neighbours to the attack, they decided that no further action would be taken.

7. Fearing of further attacks by RY, the applicant decided to leave home to take shelter at his aunt’s place in Bombay where he remained hiding for several months with no further incidents, but when he later heard that RY had found out that he was hiding in Bombay and that he would be coming for him, the applicant felt that it was no longer safe to remain in India and therefore departed on 17 December 2013 for Hong Kong …”

6.  By two decisions dated 20 November 2015 and 21 February 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3] grounds, and the second decision was an assessment of the BOR 2 risk^[4].

7.  The Board held an oral hearing on 21 March 2017 to hear the applicant’s appeal, during which the applicant had answered questions raised by the Board.  By its decision dated 1 September 2017, the Board dismissed the appeal.  For the reasons given in [53], the Board did not accept there was a real risk of the applicant being subject to ill-treatment, torture, persecution or violation of his BOR 2 right.  Based on the country of origin information (“COI”) set out in [54], the Board was further of the view that internal relocation alternatives were available and would have effectively eliminated any risk of harm,  

8.  The applicant filed his Form 86 on 24 November 2017 seeking leave to apply for judicial review against the Board’s decision.  The applicant’s supporting affirmation filed on the same day advanced the following grounds in support of the relief claimed:

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

(2)   Lack of language assistance in that he was not provided with a written translation of his non-refoulement claim form (“NCF”) to enable him to find out whether the interpretation was correct

(3)   The Board had given undue weight on country of origin information (“COI”) that showed recent efforts in India to tackle police corruption, when there were other COI showing police and government malpractices still existed.

(4)   There was no fair hearing in that the Board failed to give reasons for not requiring the attendance of the Director at the appeal. 

9.  As requested by the applicant, an oral hearing was held to hear the leave application.  The applicant was however absent.  The Judge proceeded to consider the application.  He was of the view that the intended judicial review had no prospect of success, and refused to give leave.  He set out his reasons in [14] to [20] of the Form CALL-1:

“14. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

15. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

16. As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

17. As for ground (3) over the Board’s improper reliance of COI in its assessment of effectiveness of police and law enforcement in India, it is in my view inappropriate for the applicant to just extract paragraph 53(A)(f) from the decision out of context from the rest of paragraph 53(A) which was meant to be read together, and which I did with close examination and do not find any basis for this complaint of the applicant.

18. As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board. There is simply no basis or merit in this ground of the applicant either.

19. The fact is that once it has been found and established by both the Director and the Board in their decisions that the risk of harm from RY is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of India, there is simply no justification to afford him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

20. In the premises and having considered 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.”

10.  The Notice of Appeal dated 31 July 2018 advanced the following grounds of appeal:

(1)   The applicant would face hardship if he were to return to his home country.

(2)   The Board relied on news that was not officially recognised or was simply hearsay. There was also reliance on cases that are outdated considering the dramatic changes.  The lack of credible source of information has resulted in the making of groundless speculations.

11.  The thrust of the applicant’s grounds of appeal is directed at the Board’s assessment of the risk of the applicant being subjected to harm or ill-treatment if refouled to India.  The applicant has not pointed to any error in the Judge’s reasons or decision.

12.  This Court has repeatedly emphasised that judicial review does not operate as a rehearing of a non-refoulement claim.  Assessment of the merits of the applicant’s claim is a matter for the Board and the Director, who are the primary decision-makers.  In judicial review, the Court exercises a supervisory jurisdiction and is concerned with reviewing the legality and rationality of the decision under challenge and the propriety of the process by which the decision is arrived.  The Court will not assume the role of the Director and the Board as the primary decision makers to re-assess the merits of the applicant’s claim.  Further, the focus of appeals in the Court of Appeal is on the correctness of the judge’s decision.  Unless it can be shown that there are errors in the judge’s decision, the Court of Appeal will not disturb the judge’s decision.    

13.  The applicant’s grounds of appeal are therefore misplaced and provide no basis for us to interfere with the Judge’s decision.  We would further point out that the complaints in the grounds of appeal have no substance in that they are only general assertions with no particulars. 

14.  For the above reasons, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.