RE GUNASEKARAN SARAVANAN

CACV 155/2020

[2020] HKCA 1073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 155 OF 2020

(ON APPEAL FROM HCAL NO. 1598 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 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 968.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 3 August 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 30 July 2015 (“the Director’s First Decision”) and 7 June 2017 respectively (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  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.

5.  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.

6.  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

7.  The applicant is a national of India.  He entered Hong Kong illegally on 16 December 2011 and was arrested on 8 February 2012.  He raised a torture claim on 20 February 2012 which was subsequently taken to be a non-refoulment claim under the unified screening mechanism.

8.  The details of the applicant’s claim and his personal background were set out at paragraphs 9 - 43 of the Director’s First Decision, paragraphs 22 - 55 of the Board’s Decision and paragraphs 4 - 5 of the Deputy Judge’s Decision.

9.  Briefly stated, the applicant claimed that if he was returned to India, he would be harmed or killed by Pazhani Samy (“Samy”), Balasubramanian (“Bal”) and Selvam and their people due to a land dispute.  The applicant claimed that Samy, Bal and Selvam were from the upper caste.  In 2008, his father purchased a lot of land but was opposed by Samy, Bal and Selvam as they stated that the land should only be sold to people from upper caste.  The applicant’s father sought assistance from a neighbour who was from Dravida Munnetra Kazhagam party (“DMK”) and persuaded the DMK to intervene in this land dispute.  This resulted in clashes between the DMK and the Anna Dravida Munnetra Kazhagam party (“ADMK”) to which Samy belonged.  In late 2010, while the applicant’s father was on the land, Samy, Bal and Selvam came with some members of ADMK and threatened his father to leave.  The applicant also claimed that, while he was working in Dubai, some of his colleagues from upper caste knew that his father bought the land and thus vented their anger at him.  In May 2011, when the applicant returned to India, he was punched and knocked to the ground by Bal, Selvam and five other men.  He did not report to the police as the attackers were influential.  Two days later, he was again assaulted by six to seven men on the land.  The applicant further claimed that he was assaulted for the third time by a group of seven to eight men and his attempted negotiation with Bal and Selvam not only failed but also resulted in him being injured and hospitalized for four days.  Out of fear, he eventually fled to Hong Kong for protection.

The Director’s Decisions and the Board’s Decision

10.  In the Director’s Decisions, the Director assessed the grounds on torture risk[1], 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.

11.  The applicant appealed the Director’s Decisions to the Board.  On 16 June 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 Decisions.

12.  The Board found the credibility of the applicant questionable.  His evidence on the material events was either vague or amounted to hearsay which were not supported by any credible evidence.  Further, there were inconsistencies between what he said before the Board and the statements made in the non-refoulement claim form (paragraphs 61 - 77 of the Board’s Decision).  On this basis alone, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

13.  The applicant filed a Form 86 on 10 August 2018 seeking leave to apply for judicial review against the Board’s Decision[5]. He did not advance any grounds of review in his Form 86 and simply stated in his supporting affirmation that his life would be in danger if he was to return to India.

14.  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 had put the Board’s comments to him and asked him if he had any comments. He said that he had no 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. There is no evidence that the Board had committed any error in coming to its decision.

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

Grounds for appeal

15.  The applicant filed the Notice of Appeal on 8 June 2020 to appeal the Deputy Judge’s Decision.  He again only repeated that his life would not be safe upon return and asked to be permitted to stay in Hong Kong.  Other than that, he did not advance any grounds of appeal.

Discussion

16.  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.

17.  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).

18.  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.

19.  However, the applicant did not in this appeal seek to identify any errors committed by the Deputy Judge.  There are simply no viable appeal grounds to justify any intervention of the Deputy Judge’s Decision.  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.