RE TULACHAN PREM PRASAD

CACV 438/2018

[2019] HKCA 264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 438 OF 2018

(ON APPEAL FROM HCAL NO. 807 of 2017)

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J U D G M E N T

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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 24 August 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 22 August 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 April 2017 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 25 February 2019.  The applicant was directed to lodge three sets of skeleton argument by 31 January 2019 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 were communicated to the applicant by the Notice of Hearing dated 18 January 2019, which was mailed to him and it has not been returned undelivered.   

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.

4.  As the applicant failed to lodge his skeleton argument by the stipulated time, the hearing date was vacated.  The applicant was informed of this by letter dated 1 February 2019.  We now proceed to consider his appeal on paper based on the available materials.

5.  The applicant is a Nepali national.  He entered Hong Kong on 23 January 2014 and was permitted to stay as a visitor until 30 January 2014.  He overstayed and was arrested by the police on 10 March 2014.  On 8 April 2014, he raised a non-refoulement claim based on his fear of being harmed or killed by supporters of the Nepal Communist Party Maoist Baidya because he supported the rival Maoist party, the Nepalese Communist Party Maoist Central.

6.  The applicant’s claim was detailed in [7] to [9] of the Director’s decision and [17] to [22] of the Board’s decision.  In gist, the applicant became a supporter of the Maoist after he left school.  He occupied no particular position in the party.  He had been involved in promoting the party and distributing pamphlets and putting up posters in his village.  During the 2013 local election, disputes arose between different candidates within the party and their supporters.  A fight broke out in which the applicant was involved.  He was punched on the face but he did not suffer serious injuries. He received some treatment from the hospital.  Afterwards, he moved his family to Kathmandu where he did not encounter further troubles.  Nevertheless, he was concerned about his safety and decided to leave the country to come to Hong Kong. 

7.  By a Notice of Decision dated 18 April 2017, the Director rejected the applicant’s claim on all applicable grounds, namely, torture risk[1], persecution risk[2], BOR 3 risk[3] and BOR 2 risk[4]. The Board heard the applicant’s appeal on 4 August 2017, during which the applicant was assisted by an interpreter and he had answered questions put by the Board.  By its decision dated 22 August 2017, the Board dismissed the appeal and gave its reasons at [25] to [48].

8.  The applicant filed a Form 86 on 25 October 2017 seeking leave to judicially review the Board’s decision.  The applicant’s grounds for judicial review, as summarised by the Judge (see [9] of the Form CALL-1 dated 24 August 2018, [2018] HKCFI 1925) are that:

(1)  The Director failed to examine or give sufficient weight to the extended concept of state acquiescence in his consideration of the effectiveness of state protection for its citizens against risk of torture.

(2)  The Director failed to appreciate that he did not report the attacks to the police because the citizens have no confidence in the police who are corrupt.

(3)  The Director improperly relied on country of origin information (“COI”) and concluded that the Nepalese government has made efforts to improve the effectiveness of the police when in fact the country is one of the most corrupt Asian countries.

(4)  The Director failed to apply the high standard of fairness in the consideration of his claim and his decision is Wednesbury unreasonable.

(5)  The Director failed to take into account what protection is in fact provided by the state instead of what protection would the state be able to provide.

(6)  The Director failed to consider or give sufficient weight to the COI that support the applicant’s case that the police in Nepal is corrupt.

(7)  The Board failed to apply high standards of fairness considering that the applicant was not legally represented.

(8)  he Board failed to make sufficient enquiry before concluding that no pain or suffering was inflicted on the applicant, apart from the isolated incident, and further failed to advise him to obtain medical evidence from in Nepal before concluding on the degree of severity of his injuries.

9.  At the applicant’s request, an oral hearing was held on 12 June 2018 to hear the leave application.  Having considered the applicant’s grounds for judicial review, the Judge concluded that the intended judicial review had no prospect of success, and refused to grant leave to apply for judicial review.  He gave his reasons in [10] to [12] of the Form CALL-1 as follows:

“10. [The applicant’s grounds for judicial review] are all very 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 Board had erred in the decision, or in what way did the Director fail to take into account of relevant COI in the assessment of the corruptions and effectiveness of police in Nepal, or in what way was the concept of state acquiescence relevant to his case. The applicant simply failed to explain or elaborate either in his application or affirmation.

11. On the facts of the applicant’s own case the Director and the Board were entitled to find that he was never specifically a target of those Maoist supporters in that incident which was found by the Director and the adjudicator to be no more than a fight amongst the supporters, and once it has been established, again by both the Director and the Board, that any risk of harms, even if real, from those supporters is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Nepal, there is simply no justification to interfere with their decisions not to afford the applicant with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

12. 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.”

10.  The Notice of Appeal dated 4 September 2018 advanced two grounds of appeal as follows:

(1)  The Judge erred in concluding there was no failure to adhere to the high standard of fairness.  Under the common law, the decision-making process must conform to minimum standards of procedural fairness and a decision maker is under a duty to act fairly. 

(2)  The Judge failed to make sufficient enquiry before making his decision.  He concluded that the applicant’s grounds were broad and vague without advising and/or inviting the applicant to make elaboration. 

11.  We would firstly point out that judicial review is not a rehearing or re-assessment of the merits of an applicant’s non-refoulement claim.  The function of the judge in judicial review is to review the legality and rationality of the decisions of the Board or the Director, who are the primary decision makers, and the propriety and fairness of the process by which the decisions are arrived.  The burden is on an applicant to show there are proper grounds on which the Court may grant the relief he sought. 

12.  In respect of the first ground of appeal, the applicant had not explained, whether in the Form 86 or the supporting affirmation, how the fact that the applicant was not legally represented amounted to non-adherence to the high standard of fairness.  This Court has repeatedly held that the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security (2004) 7 HKCFAR 187 does not prescribe that a non-refoulement claimant has an absolute right to free legal representation at all stages of the proceedings: see, for instance, Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The applicant was given legal representation in presenting his claim to the Director.  He was assisted by an interpreter at the appeal before the Board.  On the basis of the facts presented by the applicant, the Board concluded that the applicant could not make out a case under any of the applicable grounds.  In his application for leave to apply for judicial review, the applicant did not identify the aspects in which the Board could be said to have failed to apply the high standard of fairness.  In the circumstances, the Judge cannot be criticised for not accepting his complaint that the Board did not adhere to the high standard of fairness.  This ground of appeal therefore fails.

13.  As for the second ground of appeal, we have read the grounds put forward by the applicant to support his application for leave to apply for judicial review.  We agree with the Judge that they were couched in general and vague terms and lacking in particulars.  We do not accept that the Judge came under a duty to render any advice to the applicant or to solicit from him particulars of his complaints.  Moreover, we note that the majority of the proposed grounds of judicial review are directed at the Director’s decision, which has been superseded by the appeal to the Board since the appeal is by way of rehearing.  There is no merit in this ground of appeal. 

14.  For the reasons given above, the grounds of appeal are unarguable, and the appeal has no merits.  Accordingly, we dismiss the appeal.