RE HANS NIRMAL SINGH

CACV 540/2018

[2019] HKCA 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 540 OF 2018

(ON APPEAL FROM HCAL 53 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Au JA (giving judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refusing leave to apply for judicial review dated 26 October 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 2185.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 4 January 2018 dismissing the applicant’s appeal and the decision of the Director of Immigration (“the Director”) dated 23 June 2014 (“the Director’s First Decision”).

2.  The appeal was listed to be heard on 5 March 2019.  The applicant was directed to lodge three sets of skeleton argument by 4 February 2019 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 22 January 2019.

3.  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.

4.  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

5.  The applicant is a national of India.  He sought to enter Hong Kong on 10 March 2014 but was refused permission to land.  He was transferred to the Castle Peak Bay Immigration Center for detention.  He lodged a non-refoulement claim on 8 April 2014.

6.  The details of the applicant’s claim and his personal background were set out in paragraphs 2 and 5 - 6 of the Director’s First Decision, and paragraphs 1 - 5 and 21 - 36 of the Board’s decision dated 16 March 2015 (“the Board’s First Decision”).

7.  Briefly stated, the applicant claimed that if he were to return to India, he would be ill-treated or even killed by a man named Mahesh Inderjeet Singh (“Mahesh”) and Mahesh’s subordinates.  He claimed that Mahesh is the leader of a rival political party, Akali Dal Party (“ADP”).  Upon the applicant’s refusals to join the ADP and to withdraw a court case against some ADP members, Mahesh, as claimed by the applicant, threatened to kill him.

The Director’s Decisions

8.  By the Director’s First Decision and a Notice of Further Decision dated 30 December 2016 (“the Director’s Second Decision”), the Director decided against the applicant’s claim (collectively, “the Director’s Decisions”).  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4].

The Board’s Decisions

9.  The applicant appealed the Director’s Decisions to the Board. 

10.  The appeal against the Director’s First Decision was heard on 3 November 2014, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board dismissed the applicant’s claim.  In the Board’s First Decision, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds.  The Board was of the view that the applicant’s claim lacked credibility and that Mahesh was merely to threaten the applicant for the withdrawal of the court case rather than for political reasons (paragraphs 42 - 46 of the Board’s First Decision).  In any event, the Board found that state protection and internal relocation were available to the applicant (paragraphs 47 - 56 of the Board’s First Decision).

11.  The appeal against the Director’s Second Decision was decided on 4 January 2018 (“the Board’s Second Decision”), in which the Board opined that in the absence of any additional documents, it would be unnecessary to hold a hearing and in light of the documents available to it, the Board dismissed the applicant’s appeal against the BOR 2 risk assessment.

The Deputy Judge’s Decision

12.  The applicant filed a Form 86 on 10 January 2018 seeking leave to apply for judicial review against the Board’s Second Decision and the Director’s First Decision.  In his supporting affirmation filed on the same date, the applicant complained of (1) the lack of legal representation in his appeal before the Board; (2) the lack of legal representation/language assistance for his claim under BOR 2 risk before the Director when he was not provided with any supplementary screening interviews so that he was unable to submit additional facts in support of his claim under BOR 2 risk; and (3) the lack of fair hearing for failing to hold a hearing for his appeal on the ground of no additional facts submitted by him to the Director for his claim under BOR 2 risk as he was unable to do so without legal assistance.

13.  The applicant’s leave hearing took place on 6 September 2018.  The applicant confirmed the grounds for judicial review in the Form 86 and his supporting affirmation.  The applicant’s primary challenge was against the decisions on his BOR 2 risk claim.  In any event, the Deputy Judge also considered the challenge against the Director’s First Decision as listed in the applicant’s Form 86.  The Deputy Judge was of the view that the challenge against the Director’s First Decision was grossly out of time and refused to grant extension of time.  He further concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in paragraphs 15 ‑ 23 of the Deputy Judge’s Decision:

“15. The applicant was however of course way out of time with his application regarding the Director’s 1^st Decision as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that such application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

16. Here with the last date for the applicant to file his Form 86 for judicial review of the Director’s 1^st Decision fell on 23 September 2014, there was a delay of more than three years for which the applicant has never provided any explanation, and I am unable to see in the circumstances any good reason for extending time for his application, and given the fact that his complaints in those grounds of his as noted above essentially concern his claim under BOR 2 risk which the Director only dealt with in his 2^nd Decision, and as held in Re Moshsin Ali [2018] HKCA 549, as the Board’s Decision had overtaken the Director’s Decision, I would only focus on the Board’s Decision in the application for judicial review in my consideration of his grounds.

17. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar [2004] HKCFA 43; (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 to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

19. As for his complaint underground (2) of not being given legal or language assistance in dealing with his claim under BOR 2 risk before the Director, again the same principles and reasons apply as in his ground (1) above, and that if indeed he had additional facts or representation regarding his claim under BOR 2 risk which he had wanted to submit to the Director, he could have done so in his subsequent appeal before the Board but he never did. Even in his application now before me at his oral hearing when the only additional fact that he did produce was that he has a medical problem which he was said to have made arrangement with the Hospital Authority in Hong Kong for treatment or consultation and for which he would like to be given further time in Hong Kong which has of course nothing to do with any of the basis for his non-refoulement claim.

20. Regarding his complaint underground (3) of not being given an oral hearing before the Board regarding his claim under BOR 2 risk, as explained by the adjudicator in the decision that given the absence of any additional facts or representation from the applicant regarding his claim under BOR 2 risk, the adjudicator found it unnecessary to hold a further hearing before rejecting such claim based on the evidence available to the Board, and of which I agree that the Board was entitled to do in the circumstances and I do not find anything amiss arising from the absence of any further hearing being provided to the applicant and also for the same reasons given in paragraph 19 above.

21. The fact is 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 & Anor [2012] HKCA 502; [2013] 1 HKC 526.

22. 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.

23.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.”

This Appeal

14.  The applicant filed the Notice of Appeal dated 31 October 2018 to appeal the Deputy Judge’s Decision.  In the Notice of Appeal, the applicant merely repeated his claim that his life would be in danger if he were to return to India.  In purported further support of the appeal, the applicant referred in the accompanying affirmation to an Exhibit A to “give to court a more complete picture of the present case”.  Exhibit A was the Deputy Judge’s Decision.  There were no viable grounds contained in the applicant’s Notice of Appeal or supporting affirmation.

Discussion

15.  In relation to the Deputy Judge’s refusal to extend the time for the challenge against the Director’s First Decision, section 14AA of the High Court Ordinance, Cap.4 provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted.  The Judge’s refusal to extend the time for the applicant to make the application for leave to apply for judicial review is interlocutory in nature: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419.  In accordance with section 14AA, the applicant must first apply to the Deputy Judge to seek leave to appeal his refusal to extend time before he can put in an appeal in the Court of Appeal.  As he has not applied to the Deputy Judge, there is no leave for him to appeal to the Court of Appeal.  This being the case, the present appeal in so far as it relates to the Deputy Judge’s decision not to extend the time for challenging the Director’s First Decision is not validly constituted and this part of the appeal must be dismissed.

16.  In respect of the appeal against the Deputy Judge’s decision relating to the Board’s Second Decision, the relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

17.  First of all, 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 Board’s Decision afresh as if it is a fresh application for judicial review.

18.  Secondly, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

19.  In light of the above, it is thus incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Deputy Judge in assessing the Board’s Second Decision.  However, as mentioned above, the applicant failed to identify any error in the Deputy Judge’s Decision. There are no viable grounds of appeal.

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

21.  The applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.