RE PERUMAL DINESH

CACV 135/2019

[2019] HKCA 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2019

(ON APPEAL FROM HCAL 544/2017)

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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 Bruno Chan given on 15 March 2019 refusing the applicantleave 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 dated 13 July 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 9 March 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 28 October 2007 and was permitted to remain until 11 November 2007.  He overstayed and was arrested by the police on 12 November 2007.  He lodged a non-refoulement claim on 1 December 2007. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 20 October 2016 and 28 November 2016, the Board dismissed the appeal on 13 July 2017 (“Board’s Decision”).  At [103] of the Board’s Decision, the Board found that the applicant’s case was not credible.

6.  By a Notice of Further Decision dated 22 August 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

The judge’s decision

7.  The applicant filed a Form 86 on 24 August 2017 which contained no ground for seeking relief.

8.  In the affirmation in support of the leave application dated 24 August 2017, the applicant advanced the following grounds for judicial review which are summarised below:

“I like to inform you that I have life threaten to my life because I was work with Naxalite group around 6 months, and my father was still belong to support to them. Therefore the ADMK party members are making death threats to my all family specially for me because I am young, my father was now [illegible] life. I show my all documents for my oral hearing, but they never care about my case and they use to neglect the case...I attach document with this affirmation. I can submit my more document in future. My father was attacked by ADMK party members. I can submit further information report in future.”

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.  Nor did he submit any further documents to the court.

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 [13] to [16] of the CALL-1 Form:

“13. The applicant however has since not as he claimed in the affirmation submitted any further information or documents in support of his claim, and as such I do not find any reasonably arguable ground has been put forward by him in his supporting affirmation or elsewhere.

14. As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm in a non-refoulement claim is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error being identified by the applicant: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

15. In the premises and having proceeded to consider 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.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

11.  In the Notice of Appeal dated 20 March 2019 the applicant advanced the following grounds of appeal:

“the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly”

12.  The applicant agreed by a letter of 20 March 2019 that the appeal could be heard by two judges.

13.  The applicant failed to comply with the direction made by this Court on 8 April 2019 requiring him to lodge skeleton submissions by not less than 28 days before the hearing (subsequently fixed for 10 June 2019), despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

14.  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.

15.  The hearing date on 10 June 2019 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

16.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Director and 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.  In any event, having examined the judge’s decision, we can see no error in it.

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.