RE DINESH KUMAR

CACV 132/2020

[2020] HKCA 1057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 132 OF 2020

(ON APPEAL FROM HCAL NO. 292 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 13 May 2020, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 282.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 6 December 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 April 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The appeal was listed to be heard on 3 November 2020 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 6 October 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 8 September 2020.

4.  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.

5.  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

6.  The applicant is a national of India.  He entered Hong Kong as a visitor on 10 April 2006.  He applied extension of stay three times and he was required to leave on 19 August 2006.  However, he overstayed and was arrested by the police on 12 April 2007.  He lodged a torture claim on 21 September 2009 but was rejected on 30 January 2014.  He subsequently lodged his non-refoulement claim on 10 March 2014.

7.  The details of the applicant’s claim and his personal background were set out at paragraph 8 of the Director’s Decision and paragraphs 45 - 80 of the Board’s Decision.  The Deputy Judge’s summary is at paragraphs 1 - 4 of his Decision.

8.  Briefly stated, the applicant claimed that if he was returned to India, he would be harmed or killed by his “enemies” because they were cheated by his business partner Gurwinder Singh (“GS”).  The applicant claimed to have an agency company with GS.  The applicant was in the New Delhi branch while GS was in Punjab branch.  In around 2005, some customers approached the applicant as they claimed to be cheated by GS into paying for tickets and they were told to find the applicant for either the tickets or the refund. The applicant was unable to locate GS in Punjab and, upon his return to New Delhi, he was threatened and assaulted by a group of four or five persons, whom he could not identify, for the repayment of monies.  The applicant reported the attack to the police who said they would not investigate unless the applicant offered bribe.  The applicant claimed that he was unable to find GS and, out of fear, he fled to Hong Kong for protection.

The Director’s Decision and the Board’s Decision

9.  In the Director’s Decision, the Director assessed the grounds other than torture risk[1], namely, the grounds on the BOR 3 risk[2], the persecution risk[3], and the BOR 2 risk[4]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

10.  The applicant appealed the Director’s Decision to the Board.  On 18 August 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 Decision.

11.  The Board found that the applicant’s fear of the alleged enemies and the fact that the police would not protect him unless he bribed them were bare assertions not supported by any objective evidence (paragraphs 88 - 91 of the Board’s Decision).  In any event, it was a private monetary dispute without state involvement (paragraph 105 of the Board’s Decision).  Alternatively, state protection and internal relocation were both available to the applicant (paragraphs 92 - 107 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

12.  The applicant filed a Form 86 on 23 February 2018 seeking leave to apply for judicial review against the Board’s Decision.  He did not advance any grounds of review in either his Form 86 or his supporting affirmation filed on the same date.

13.  The applicant did not request an oral hearing.  After the considering the documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in [10] - [13] of the his Decision:

“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 an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department or 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.  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.

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

14.  The applicant filed the Notice of Appeal on 25 May 2020 to appeal the Deputy Judge’s Decision.  He simply stated that his life would not be safe upon return and asked to be given more time to submit some documents for his case.  On 6 July 2020, the applicant filed a supplemental Notice of Appeal, in that he advanced two grounds that (a) the Deputy Judge failed to give proper grounds for refusing his appeal against the Board’s Decision; and (b) the Deputy Judge failed to inform the applicant to attend the leave application.  He also repeated that he had documents to submit in support of his case.  Yet, he did not specify what the documents were or why the documents were relevant.  Even up to the present, the applicant did not file the said documents.

Discussion

15.  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.

16.  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.

17.  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.

18.  The two grounds against the Deputy Judge are misconceived.  As quoted at paragraph 14 above, the Deputy Judge provided a detailed analysis that was well supported by legal authorities as to why the applicant’s application for leave to apply for judicial review against the Board should be dismissed.  Further, the applicant failed to request an oral hearing in his Form 86 and it is therefore without basis for him to argue that he was not informed about the hearing.  These are not viable grounds of appeal against the Deputy Judge’s Decision.

19.  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

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