RE MALKEET SINGH

CACV 391/2019

[2021] HKCA 587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 391 OF 2019

(ON APPEAL FROM HCAL NO. 1136 OF 2017)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 14 August 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 12 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 5 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 22 May 2013 and was refused permission to land. He raised a torture claim on 23 May 2013. 

3.  The applicant gave wholly different reasons for his need to seek protection.  The details of the applicant’s allegations have been summarised by the judge at [9] to [11] of the CALL-1 Form.

4.  His claim based on torture risk^[1] was rejected by the Director on 29 July 2013. 

5.  By a Notice of Decision dated 12 March 2015 (“the Director’s Decision”), the Director also dismissed his claim based on the BOR 3 risk^[2] and the persecution risk^[3]. The applicant appealed and the Board dismissed his appeal on 14 December 2016.

6.  By a Notice of Further Decision dated 5 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.  The applicant applied for a late filing of a petition to appeal against the Further Decision.  By a decision dated 12 December 2017, the Board refused to allow the late filing of the petition. 

7.  At [28] – [30] of the Board’s Decision, the Board considered the 3 different bases for seeking non-refoulement protection advanced by the applicant and concluded at [31] that it would not be unjust not to allow the late filing.

8.  The applicant filed a Form 86 on 22 December 2017 against the Board’s Decision on 12 December 2017 which contained the following grounds for judicial review:

(1)  The Board erred in failing to maintain the high standard of fairness by not holding an oral hearing;

(2)  The decision-maker failed to act fairly; and

(3)  The Board failed to consider the lack of legal representation and language difficulty faced by the applicant.

9.  In his affirmation in support of the leave application dated 22 December 2017, the applicant elaborated on the grounds advanced in the Form 86.

10.  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 [24] to [39] of the CALL-1 Form:

“24. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

25. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul:-

“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 scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.” 

Late filing of appeal to the Board

26. s. 37ZS (1) of the Immigration Ordinance states: –

A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).

27. s. 37ZT of the same ordinance provides: –

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which –

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.

28. The Applicant complained the Adjudicator was not acting fairly and failed to consider he was not legally represented.

29. The Adjudicator was certainly aware the Applicant was not legally represented. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.

30. The Applicant complained the Adjudicator failed to hold a hearing with him to clarify his situation.

31. The Applicant filed his appeal against the Director’s 2017 decision late. According to s.37ZT(2) of the Immigration Ordinance, the Adjudicator must decide, as a preliminary decision without a hearing, whether the Board should allow the late filing of appeal.

32. In the Notice of Appeal, the Applicant gave reason for his late filing of appeal. He said he did not receive the Director’s 2017 decision until early August 2017. He thought it had been sent to the wrong address. The Adjudicator considered the reason was vague. On 21 November 2017, he wrote to the Applicant to invite him to give more information and proof. The Applicant did not respond.

33. The Adjudicator was not convinced by the vague late filing reason provided by the Applicant. Nevertheless, he considered the Applicant's grounds of appeal and the merits of his case. The Adjudicator noted the blatantly inconsistent claims of risk made by the Applicant at different stages of the screening process.

34. The Adjudicator did not find the Applicant had any good reason for his 54-day delay, which was substantial. He found no special circumstances that oblige him to accept the Applicant's late appeal against the Director's 2017 decision. On 12 December 2017, he dismissed the Applicant’s late appeal.

35. The Adjudicator had considered all the circumstances in the Applicant's case. His decision not to allow the Applicant's late filing of appeal was not Wednesbury unreasonable.

36. The Applicant complained the Adjudicator did not inform him in his language that he could complain.

37. The Adjudicator had no such duty. The facts of the case showed the Applicant himself knew what he could do and should do. He filed his appeal to the Board against the Director’s 2017 decision late but he filed his first appeal to the Board in March 2015 against the Director's 2015 decision in time. He also filed the current application for leave for judicial review of the Board’s 2017 decision in time. His documents were properly prepared in English and he confirmed all the grounds of his application were there.

38. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Applicant had been given reasonable and sufficient opportunities to explain his claim in the screening process. He had been given enough chance by the Adjudicator to explain for his late appeal against the Director's 2017 decision. He did not respond to the Adjudicator’s written request. The Adjudicator was acquainted with the Applicant’s claim. He considered the Applicant’s situation carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

39. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 23 August 2019 the applicant advanced the following grounds of appeal:

“the Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

12.  The applicant failed to comply with the direction made by this Court on 11 September 2019 requiring him to lodge skeleton submissions 28 days before the hearing date, 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 17 December 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 only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

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