RE CHARAN KAMAL

CACV 481/2019

[2020] HKCA 453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 481 OF 2019

(ON APPEAL FROM HCAL NO. 85 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”), as set out in the Form CALL-1 dated 8 October 2019 refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 818. 

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 22 December 2017 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated 19 May 2016 (“the Director’s First Decision) and 17 August 2017 (the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  The appeal was listed to be heard on 25 February 2020 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 24 January 2020 and was 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 were communicated to the applicant by the Notice of Hearing dated 28 November 2019.

5.  The requirement for lodging skeleton argument in an appeal is set out in 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.

6.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.

Background

7.  The applicant is a national of India.  He entered Hong Kong illegally on 4 October 2010 and was arrested on the same date.  He lodged a non-refoulement claim on 7 October 2010.

8.  The details of the applicant’s claim and his personal background were set out in paragraphs 5-6 of the Director’s First Decision and paragraph 18 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that, if he were to return to India, he would be harmed or killed by the family of Baksish Singh (“Baksish”) due to a land dispute.  The land dispute between his grandfather and the father of Baksish existed long before the applicant was born.  After the death of his grandfather and his mother, the land passed on to him in 2008.  In 2009, he started living in the house on the land.  Two weeks after, he received a call from Baksish with death threats demanding the return of the land.  He did not report the matter to the police because Baksish was a candidate of the political party which won the election.  A month after the threat, he was chased by 8 to 9 men whose faces were covered.  However, he did not sustain any injuries.  Subsequently, out of fear, he left his home country.

The Director’s Decisions and the Board’s Decision

10.  In the Director’s First Decision, the Director assessed the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3].  The Director’s Second Decision covered the BOR 2 risk^[4] assessment.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

11.  The applicant appealed the Director’s Decisions to the Board.  On 3 November 2017, the Board conducted an oral hearing, during which the applicant answered questions from the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection and dismissed his appeal against the Director’s Decisions.

12.  The applicant admitted before the Board that he did not sustain any injuries during those alleged incidents.  The Board also refused to accept the applicant’s version of events due to glaring contradictions between the information stated in his non-refoulement claim form and the records of interview.  Further, the applicant admitted that he intended to go to Guangzhou, China in the first place, and had he found a job there he would not have come to Hong Kong.  Based on his contradictory evidence and the fact that his intention was not for non-refoulement protection, the Board dismissed his appeal (paragraphs 19-23 of the Board’s Decision).  In any event, the Board found that state protection and internal relocation were available to the applicant (paragraphs 26-28 and 40-43 of the Board’s Decision). 

The Deputy Judge’s Decision

13.  The applicant filed a Form 86 on 18 January 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decisions.  The grounds of review were summarized by the Deputy Judge at paragraph 12 of the Deputy Judge’s Decision:

“12. On 18 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) misdirection in law that the Director and the adjudicator misdirected himself on the law by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the failure of the Director and the adjudicator to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the failure of the Director and the adjudicator to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the failure of the Director and the adjudicator to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(5) irrationality in the failure of the Director and the adjudicator to analyze and assess whether state protection exists in India and misdirected themselves as to the extended meaning of state protection;

(6) irrationality in their decisions for taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts resulting in a decision that was not Wednesbury reasonable;

(7) procedural impropriety in the Director’s assessment of the applicant’s claim without providing notice in advance of the screening interview which was unfair to him;

(8) irrationality in that the Director took into account or put weight in irrelevant information and in applying the incorrect standard of proof in the decision;

(9) procedural impropriety in failure to call for psychological and psychiatric evaluations and reports at any stage of screening by his assigned lawyer resulting in an unfair procedure; and

(10) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.”

14.  The applicant did not request an oral hearing before the Deputy Judge.  The Deputy Judge proceeded to consider the application based on all the documents available before him.  He concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 13 - 16 of the Deputy Judge’s Decision:

“13. These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was pattern of mass violation of human rights in India to his claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness in their decisions being clearly and properly identified by the applicant, I do not find any of these grounds reasonably arguable for his intended challenge.

14. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. 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.

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

15.  The applicant filed the Notice of Appeal on 14 October 2019 to appeal the Deputy Judge’s Decision.  The applicant simply stated that he was not satisfied with the Deputy Judge’s Decision because he still faced problems in his home country.  Other than that, he did not identify any errors in the Deputy Judge’s Decision.

Discussion

16.  The relevant legal principles governing the appeal in non-refoulement cases are set out at paragraph 14 of Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

18.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Deputy Judge’s Decision with sufficient particulars and specifics.

19.  However, it is apparent from the Notice of Appeal that the applicant did not identify any errors committed by the Deputy Judge.  This is not a viable ground of appeal. 

20.  In any event, we have reviewed the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

21.  For the reasons given above, the applicant’s appeal has no merits.  Accordingly, we dismiss the appeal.