RE MUTHUCHAMI AJAI KUMARGOSH

CACV 168/2020

[2020] HKCA 1072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 168 OF 2020

(ON APPEAL FROM HCAL NO. 1631 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving the judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) as set out in the Form CALL-1 dated 29 May 2020, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 969.

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 August 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 August 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 19 December 2012.  He overstayed since 3 January 2013 and was arrested on 3 February 2013.  He lodged a torture claim on 7 February 2013, which was eventually refused on 17 February 2014.  He later lodged a non-refoulement claim in Hong Kong on 27 June 2013.

7.  The details of the applicant’s claim and his personal background were set out at paragraph 10 of the Director’s Decision, paragraphs 15 - 34 of the Board’s Decision and paragraphs 4 - 7 of the Deputy Judge’s Decision.

8.  Briefly stated, the applicant claimed that if he was returned to India, he would be harmed or killed by members of the Anna Dravida Munnetra Kazhagam Party (“ADMK”), in particular, a man called Kurushav or his associates.  The applicant claimed to be a member of the Communist Party (“CP”).  In August 2009, the applicant was arrested by the police for an offence of assaulting an herbal medicine practitioner.  He was able to instruct a lawyer and subsequently obtained bail from the court.  Later in April 2010, when the applicant attended a festival, some participants vandalized a police vehicle and the applicant was arrested by the police for being a suspect of the vandalism.  The applicant believed that the ADMK members framed him in both cases because he worked for CP.  Further, the applicant had a friend who was in love with the daughter of Kurushav.  Kurushav disapproved of this relationship and the applicant helped the couple escape to another village.  However, Kurushav was able to chase his daughter back and seriously injured the applicant’s friend.  The applicant believed that the daughter revealed his name to Kurushav and in November 2012 some gangsters came to his house, disgraced his family members and ransacked his house.  Out of fear, the applicant 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 the applicant’s claim on torture risk[1] as it was refused on 17 February 2014.  The applicant’s claim was assessed on the grounds of 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 7 June 2018, the Board conducted an oral hearing[5], 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 provided a relatively consistent account of the criminal charges.  However, it found that there was no objective evidence to support the applicant’s allegation that these charges were fabricated against him.  Also, the applicant’s alleged fear of attack by Kurushav and his associates and the allegation of vandalism of his house were based on hearsay evidence.  Further, the applicant’s claim that he was not allowed to leave India was inherently implausible (paragraphs 88 - 100 of the Board’s Decision).  Since there were many inconsistencies in the material events relied on by the applicant, the Board found that the applicant was not a credible witness.  Alternatively, the Board found that state protection and internal relocation were available to the applicant (paragraphs 101 - 108 and paragraphs 111 - 121 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 14 August 2018 seeking leave to apply for judicial review against the Board’s Decision.  He did not advance any grounds of review in his Form 86 or his supporting affirmation filed on the same date.

13.  The Deputy Judge heard the applicant’s leave application on 8 August 2019.  The Deputy Judge held that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in [15] - [18] of the Deputy Judge’s Decision:

“DISCUSSION

15.  The applicant appeared before me. He confirmed that he was able to speak freely at the interview with the immigration officer and before the Adjudicator at the appeal hearing.

16.  I put the Board’s findings above to the applicant and asked him if he had any comments on them. He said he did not have any comments.

17.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review.

18.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Grounds for appeal

14.  The applicant filed the Notice of Appeal on 11 June 2020 to appeal the Deputy Judge’s Decision.  The applicant simply stated that he could not go back to his home country since his life was not safe there and asked to be permitted to stay in Hong Kong.  On 6 July 2020, the applicant filed a supplemental grounds of appeal. In that, he claimed that “1) failing to give all proper grounds for refusing appeal by the Torture Claims Appeal Board; 2) Failing to inform applican to attend the leave application for judicial review there by causing the unfavourable judgment in the leave application” [sic].

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.  However, it is clear that the applicant did not identify any errors committed by the Deputy Judge.  The applicant’s supplemental grounds seemed to suggest that the Deputy Judge did not provide proper grounds for refusing the appeal against the Board’s Decision and that he was not informed to attend the hearing before the Deputy Judge.  However, these allegations are totally misconceived.  As quoted above at paragraph 14, the Deputy Judge had provided reasons for dismissing the applicant’s appeal against the Board’s Decision.  The applicant also appeared before the Deputy Judge.  There is therefore not a viable ground of appeal to challenge 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.