RE BALBIR SINGH

CACV 129/2019

[2019] HKCA 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 129 OF 2019

(ON APPEAL FROM HCAL 416/2018)

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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 8 March 2019 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 dated 28 February 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 8 January 2016 and 22 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 7 March 2011 and was refused permission to land.  He then lodged a non-refoulement claim. 

3.  The applicant’s claim was based on threats from his former employer who was allegedly politically well-connected.  The details of the applicant’s claim have been summarised by the judge at [2] to [10] of the CALL-1 Form.

4.  By a Notice of Decision dated 8 January 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

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

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 August 2017, the Board dismissed the appeal on 28 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [26] of the Board’s Decision, the Board found that the applicant’s case was unreliable and could not be sustained.  The Board was also satisfied at [32] that state protection would be available for the applicant and at [52] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 and a supporting affirmation on 14 March 2018.  The applicant advanced the following grounds for judicial review:

(1) lack of legal representation or language assistance in his present application for judicial review; and

(2) failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk and for relying on improper or irrelevant COI on India in the assessment of his claim under BOR 2 risk.

9.  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 [17] to [24] of the CALL-1 Form:

“17. His first complaint is clearly misplaced as it cannot be considered as a ground or reason for challenging the decisions of the Director or the Board. Furthermore, 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.

18. The applicant already had the benefit of legal representation in presenting his case not just to the Director but also in his appeal to the Board, and clearly also had legal assistance in the drafting and preparing of his supporting affirmation for his application now before me, whilst at the hearing he did not put forward any argument with regard to the lack of legal representation when in fact he just stated that he had nothing to say when invited to elaborate on this ground, or for that matter any of other grounds for his application. As such any lack of legal representation in his present application simply cannot be relied on or used as an excuse for his failure to properly identify any error in those decisions.

19. As for ground (2) it is plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 7 – 13 of his Notice of Further Decision explaining the reasons for rejecting the applicant’s claim under BOR 2 risk. There is again no basis for this complaint of the applicant.

20. As for his complaint of the Director’s reliance of improper or irrelevant COI in its assessment of his claim under BOR 2 risk, the applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in the decisions of the Director as well as those considered by the Board, I do not find any basis in this complaint of the applicant either.

21. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them 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 or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

22. Furthermore, the fact that it has been established by both the Director and the Board in their decisions 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 [2013] 1 HKC 526.

23. 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.

24.    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

10.  In the Notice of Appeal dated 18 March 2019 the applicant stated that:

“Please refer to the affirmation pages for grounds of appeal”

11.  In the affirmation dated 18 March 2019, the applicant stated that:

“I do not agree with the judgment order of the date 8 of March 2019. That’s why I applying the notice of appeal here I attach the copy of judgment order and others marked ‘m’”

12.  The applicant failed to comply with the direction made by this court on 8 April 2019 requiring him to lodge skeleton submissions not less than 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 23 July 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

15.  The applicant failed to identify any viable ground of appeal in the Notice of Appeal or his supporting affirmation, both dated 18 March 2019.  He simply stated his disagreement with the decision without suggesting any reason as to why it was wrong.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.