RE SK SARFARAJ

CACV 64/2018

[2018] HKCA 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 64 OF 2018

(ON APPEAL FROM HCAL 467 OF 2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 13 March 2018 refusing leave to the applicant to apply for judicial review. The applicant is an Indian national. He entered Hong Kong on 4 June 2014. He overstayed and surrendered to the police on 21 June 2014. On 23 June 2014, he lodged a claim for non-refoulement protection. His claim is based on a threat from a Hindu group. According to the applicant, he was beaten and threatened by a group of Hindus because he refused to convert to Hinduism.

2.  The Director decided against the claims on 28 June 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 3 March 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 16 May 2017, the Board dismissed the appeals on 7 July 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Board Decision only.  The Form 86 filed by the applicant on 28 July 2017 did not state any ground for judicial review.

5.  In his affirmation of 28 July 2017, she gave the following grounds for judicial review:

(1)  The Board failed to carry out sufficient research into the Country of Origin Information (COI).

(2)  The Board cherry-picked COI information.

(3)  The Board failed to evaluate and make a finding of fact as to the existence in India a consistent pattern of gross, flagrant or mass violation of human rights.

(4)  The Board failed to assess whether state protection existed and misdirected itself as to the meaning of state protection.

(5)  The Board took into account irrelevant consideration and the Board Decision was unreasonable.

(6)  Failure to call for psychological and psychiatric evaluation and reports at the screening stage and in the appeal to the Board.

(7)  The Board applied the incorrect standard of proof.

(8)  Failures at first instance by the assigned duty lawyer resulted in a lack of legal representation.

6.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [16] to [22] of the CALL-1 Form of 13 March 2018:

“16. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

17. This application lists eight grounds of judicial review. Many involve the adjudicator’s failure concerning COI material and information. Those include grounds 1, 2 and 5. Ground 3 criticises the adjudicator for failing to consider human rights violations and Ground 4 criticises him for failing to consider whether State protection exists in India. Firstly, particulars have not been given in relation to each of these grounds and complaints. Secondly, the adjudicator has made little reference to COI material; referring only to material from the applicant. Having found no evidence, the applicant would be personally at risk if refouled and making the specific finding the applicant was not a genuine credible claimant, there was no need for the adjudicator to consider human rights violations and State protection in [India] in any depth.

18. Grounds 6, 7 and 8 also lack particulars. There was never any basis for the adjudicator to call for psychological and psychiatric evaluation. There were no complaints by the applicant nor any particulars given to the adjudicator that the assigned duty lawyer failed him previously. In fact, during the oral hearing the applicant confirmed to this court that he had no complaints against the duty lawyer; he said that the lawyer did a good job. None of the above grounds have any merit.

19. There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle. He says he was ill-prepared and confused during the hearing. During the oral hearing the applicant said to this court that he did raise this with the adjudicator but the adjudicator did nothing. However, it then transpired that his confusion was more to do with his own memory and his inability to answer questions properly. He was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood its contents.

20. There was also a complaint the BOR 2 risk was not screened by the Director before it was determined by the adjudicator. It is clear from the dates that the Director dealt with the BOR 2 and rejected it before the adjudicator dealt with it during the appeal. This complaint has no merit.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

7.  In the notice of appeal of 16 March 2018, the applicant argued that he did not fully understand the procedure of the Board hearing.  The interpreter only informed him about some parts of the procedures when necessary.  The applicant had no knowledge of the rest of the procedures.  The judge erred in holding that the applicant was “not actually confused about the procedure” at [19]. Further, he complained that many of his words had been wrongly interpreted in the Board hearing.

8.  The applicant agreed by a letter of 21 March 2018 that the appeal can be heard by two judges.

9.  The appeal was listed for hearing on 11 June 2018.  The applicant was directed to lodge skeleton submissions by 18 May 2018 and also warned that should he fail to do so, the appeal date would be vacated and the appeal would be dealt with on paper.  The direction and the warning was communicated to the applicant in the letter from the court and the notice of hearing both dated 26 April 2018.

10.  The applicant failed to lodge any skeleton submissions by the stipulated time.  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.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  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.  As such, the hearing date was vacated, and we have processed this appeal on paper based on the available material.

11.  Having considered the applicant’s case in light of the materials before us, we found the judge’s observations to be justified.

12.  Both grounds 1 and 2 of the applicant’s affirmation concern COI.  The Board considered COI in detail at §§65-71 of the Board Decision.  The applicant did not give any particulars of the COI that the Board ought to have researched into or the COI that the Board allegedly “cherry-picked” and the respects in which this may have disadvantaged the applicant.  There is nothing to suggest that the Board made any error when considering COI.  This ground has no merit.

13.  For ground 3, the Board held that the applicant’s fear of ill‑treatment is on account of his religion only and not due to race or other factors (§§61-62).  The Board held that there was no reasonable possibility of the applicant being persecuted upon his return (§63).  The Board did make a finding that the applicant will not be subject to human rights violation upon his return.  This ground has no merit.

14.  For ground 4, the Board referred to COI and held that state protection exists (§§65-71). The applicant is unable to point to any error committed by the Board.  This ground has no merit.

15.  The applicant did not give any particulars for grounds 5, 7, and 8.  These grounds are bound to fail.

16.  For ground 6, the mental condition of the applicant was apparently not at issue before the Director or the Board.  The applicant was present at the Board hearing and he could have raised the same with the Board.  The applicant never gave any reason why a psychological or psychiatric evaluation was necessary or how it could affect the outcome of his claim.  This ground is without merit.

17.  Turning to the grounds raised in the notice of appeal, the ground about his lack of understanding of the procedure is tied with the applicant’s complaint that the hearing bundle for the Board hearing was only given a few days before the hearing (bottom-most paragraph of p.18 of the applicant’s affirmation dated 28 July 2017).  The applicant did not state how the timing of the provision of the hearing bundle or his lack of understanding of the procedure had affected his conduct of the Board hearing.  There is no merit in this ground.

18.  For the ground concerning the alleged misinterpretation of words, he did not give any particulars.  This ground is without merit.

19.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

20.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.