RE RAI AMBER

CACV 208/2021

[2021] HKCA 1817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 208 OF 2021

(ON APPEAL FROM HCAL 1104/2018)

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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 (“judge”)  given on 16 April 2021 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 (“Board”)  dated 7 June 2018 (“Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 8 November 2016 rejecting the applicant’s non-refoulement claim (“Director’s Decision”).

Background

2.  The applicant is a national of India.  He last arrived in Hong Kong on 4 June 2014 and was permitted to remain as a visitor until 7 June 2014.  He overstayed and surrendered to the Immigration Department on 19 March 2015.  Thereafter, he lodged a non-refoulement claim on 7 May 2015.

3.  The applicant’s claim was based on his fear of being harmed or killed by his political rivals should he be refouled to India.  The details of the applicant’s claim have been summarised by the judge at [1] to [3] of the judge’s decision[1].

4.  By a Notice of Decision dated 8 November 2016 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board.  After a hearing on 8 March 2018, the Board dismissed the appeal on 7 June 2018 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found the applicant’s evidence to be inconsistent and incredible, and held that he did not give a truthful or reliable account of events which took place before he departed from India.

The judge’s decision

6.  The applicant filed a Form 86 on 15 June 2018 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.

7.  In the applicant’s supporting affirmation, he deposed:

“The decision taken by the [Director] and the [Board], for my application for seeking non-refoulement protection in Hong Kong is not correct. They have failed to consider the ground realities in Indian before reaching at their decisions. The references they made for reaching their decision don’t show the actual realities in India.”

8.  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 grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [13] of the CALL-1 Form:

“9. On 15 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely asserted that their decisions regarding his non-refoulement claim were incorrect in failing to consider the ground realities in India and that they do not show the actual realities in India but without providing any details or particulars or elaborations how they were so, nor did he put forward any other proper ground for his intended challenge at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

12. 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.

13. 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

9.  In the Notice of Appeal filed on 30 April 2021, the applicant stated:

“(1)  I was unable to put forward my case properly in the court because I didn’t had any legal representative.

(2)  Because of my low education background and no knowledge of legal proceedings, I was unable to explain my case properly.

(3)  I be given an opportunity to explain myself and I will seek legal advice in the meantime to learn how these proceedings work.”

10.  The applicant did not file an affirmation in support of the Notice of Appeal.

11.  In breach of paragraph 3(1)  of the directions given by the Registrar of Civil Appeals on 21 September 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 5 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

12.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance 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 a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 22 November 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.  The applicant’s primary complaints stated in the Notice of Appeal relate to alleged procedural unfairness by reason of his lack of legal representation in the proceedings below.

15.  We note that in this case, the applicant had the benefit of legal representation from the Duty Lawyer Service in presenting his case to the Director, including the submission of his non-refoulement claim form and at his screening interview with the Director on 22 September 2016.

16.  As this court has held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See 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 Ahmed Syed Rafiq [2018] HKCA 178.  It suffices for legal representation to be provided at the initial stage, with subsequent legal representation being provided on a merits basis.

17.  The applicant has failed to identify any error of law by the judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  We cannot discern any such matters either. 

18.  In any event, we have scrutinised the Board’s Decision and the judge’s decision and are satisfied that they are both in order.

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