RE CHANDRA BAHADUR RAUT

CACV 357/2019

[2019] HKCA 1377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 357 OF 2019

(ON APPEAL FROM HCAL 1603 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 K W Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 22 July 2019 refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1801.  The intended judicial review is against the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 23 January 2017 (“the Board’s First Decision”) and 27 July 2018 (“the Board’s Second Decision”). The applicant also named the Immigration Department as proposed respondent. The Director of Immigration (“the Director”) issued the decisions dated 23 March 2015 (“the Director’s First Decision”) and 10 November 2017 (“the Director’s Second Decision”) respectively rejecting the applicant’s non-refoulement claim.

2.  The Board’s First Decision and the Board’s Second Decision will be referred to collectively as “the Board’s Decisions”.  Similarly, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.  The appeal was listed to be heard on 18 November 2019 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 21 October 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 16 September 2019.

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 Nepal.  He entered Hong Kong on 28 January 2014 and was permitted to stay until 30 January 2014.  He was arrested for overstaying on 23 February 2014.  He lodged a non-refoulement claim on 25 February 2014.

7.  The details of the applicant’s claim and his personal background were set out in paragraphs 7 - 22 of the Director’s First Decision and paragraphs 25 - 39 of the Board’s First Decision.

8.  Briefly stated, the applicant claimed that he would be harmed or killed by members of Communist Party of Nepal (Maoist) (“CPN-M”) if he were returned to Nepal.  In around 2001, when the applicant was in class 10, he involved in the programs and rallies of CPN-M for about a year.  However, since he devoted most of his time helping his family, he refused to join the CPN-M to fight the Nepali government.  To avoid the pressure from CPN-M, he stayed in Dubai from 2005 to 2008.  Upon his return to Nepal, the members of CPN-M started visiting his house asking him to join the party or to make donations to them.  The applicant then went into hiding in 2009 when he was unable to afford paying the extortion.  Afterwards, he went to Qatar from 2009 to 2011.  It appeared that nothing happened from 2011 to 2013 when he returned to Nepal except he felt troubled by the CPN-M members.  Prior to Nepal’s general election in 2013, the applicant was appointed as temporary police officer to maintain law and order.  In the end, CPN-M lost the election and blamed the applicant for not voting for them.  The CPN-M viewed the applicant as betraying them and broke into the applicant’s house threatening to kill him.  They punched, kicked and assaulted the applicant with sticks. Eventually, the applicant fled to Hong Kong out of fear.

The Director’s Decisions and the Board’s Decision

9.  In the Director’s First Decision, the Director assessed the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3]. The Director’s Second Decision covered the BOR 2 risk^[4] assessment.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

10.  In the Board’s First Decision, the Board dealt with the applicant’s appeal against the Director’s First Decision.  At the hearing dated 25 July 2016, the Board heard the applicant’s appeal and, during which, the applicant answered questions raised by 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 First Decision.

11.  The Board refused to accept the applicant’s versions of events due to glaring contradictions, such as whether the applicant was demanded money by CPN-M members between 2011 and 2013 and whether temporary police officers had votes during the election (paragraphs 49 - 51 of the Board’s First Decision).  In any event, the Board found that internal relocation was available to the applicant (paragraphs 54 - 57 of the Board’s First Decision).

12.  By the Board’s Second Decision, the Board rejected the applicant’s appeal against the Director’s Second Decision.  Since the applicant did not submit further information as requested, the Board decided the appeal without an oral hearing.  It found that, in light of the Board’s findings in the Board’s First Decision, the applicant failed to establish that he would be subject to capital punishment or any risk of harm to his life from the Nepali government (paragraphs 11 - 12 of the Board’s Second Decision).

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 Second Decision although he named the Immigration Department and the Board as proposed respondents in the Form 86.  In his supporting affirmation filed on the same date, he simply stated that his life would be in danger if he were returned to Nepal.  The applicant did not request an oral hearing for his leave application before the Deputy Judge.  However, the court invited him to address his claim in court, but the applicant did not attend the hearing.  As a result, the Deputy Judge proceeded to consider all the documents available before him. He concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 13 - 21 of the Deputy Judge’s Decision:

The Director’s Decisions

13.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered his appeal and made its Decision.

14.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018 [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45.  All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

15.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

16.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decisions

17.  I note that the application is out of time for the Board’s First Decision but is within time for the Board’s Further Decision. Having considered the reasons below, I decided to extend time for the application against the Board’s First Decision to coincide with the time limit of the Board’s Further Decision:

a. In considering the Board’s Further Decision, the Board has to consider the facts in the Board’s First Decision

b. The hearing of the Board’s First Decision took place on 25 July 2016. The First Decision was dated 23 January2017. On 12 July 2017, the Director sent a letter to the applicant telling him that BOR 2 risk would be considered and he had the opportunity of making additional information to him for his consideration by 27 July 2017. It was therefore reasonable for the applicant to think that the whole screening process had not finished until BOR 2 risk had been determined.

c. In any event, if these two Decisions were considered separately, the Board’s Further Decision cannot be considered independently without reference to the facts set out in the First Decision.

d. In substance, the two Decisions should be considered as a whole as it is a unified screening mechanism.

18.  Therefore, the application is within time.

19.  The Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.

20.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018 [2018] HKCA 549 held that the findings of facts by the Adjudicator was final [42].

21.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

Grounds for appeal

14.  The applicant filed the Notice of Appeal on 2 August 2019 to appeal the Deputy Judge’s Decision.  In a letter attached to the Notice of Appeal, the applicant claimed that he has a critical heart problem that required the same doctor’s attendance in Hong Kong.  He was afraid that if he left Hong Kong, he would not be able to receive a good medical treatment for his heart.  Apart from that, he did not identify any errors in the Deputy Judge’s Decision.

Discussion

15.  It is trite law that 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: see [14] of Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In light of the above, it is thus incumbent on the applicant to point out the errors allegedly committed by the Deputy Judge with sufficient particulars and specifics.

17.  However, it is apparent from the Notice of Appeal that the applicant failed to identify any errors committed by the Deputy Judge.  He simply introduced a new piece of information that was not argued before the Deputy Judge.  This new information is new evidence or argument that has not been ventilated in the court below nor has leave been obtained for admission of such evidence.  We will not entertain new arguments which are fact sensitive and have not been considered below: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] - [41].

18.  Further, the medical condition of the applicant cannot be a proper basis for seeking leave for judicial review when there is no proper basis to challenge the Board’s decision.  This is therefore not a valid basis which can show that the Deputy Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.

19.  In any event, we have reviewed the Board’s Decisions 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.