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CACV 641/2020
[2021] HKCA 911
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 641 OF 2020
(ON APPEAL FROM HCAL 1897/2018)
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| RE: |
LAKHWINDER SINGH |
Applicant |
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Before: Hon Barma JA and Linda Chan J in Court
Date of Judgment: 13 July 2021
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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 P Li given on 4 December 2020 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 (“Board”) dated 20 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 13 March 2018 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of India. He entered Hong Kong on 20 August 2015 illegally and was arrested by the police on the same day. He lodged a non-refoulement claim on 22 August 2015.
3. The applicant’s claim was based on threats from members of an opposing political party. The details of the applicant’s claim have been summarised by the judge at [2] to [10] of the CALL-1 Form.
4. By a Notice of Decision dated 13 March 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3] and the torture risk[4].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 16 July 2018, the Board dismissed the appeal on 20 August 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.
6. At [95] and [99] of the Board’s Decision, the Board found that the applicant’s case was not credible and that he would not face any proscribed risks of harm upon his return. The Board was also satisfied at [98] that internal relocation would be viable.
The judge’s decision
7. The applicant filed a Form 86 on 11 September 2018 which contained no ground for seeking relief.
8. In his affirmation in support of the leave application filed on 11 September 2018, the applicant deposed that:
“I can’t go back to my country because my life is not save [sic] there. Please help me to stay in Hong Kong until my problem will be solved. I will be grateful to you.”
9. By a letter dated 31 December 2019, the applicant claimed that he did not attend the oral hearing because he did not receive any notice. He asked for a chance to take his case further. The applicant did not give any ground for seeking relief in this letter.
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 [27] to [32] of the CALL-1 Form:
“27. The applicant applied for leave for judicial review on 11/9/2018. In his supporting affirmation, he pointed out that he was not safe in his home country. He wanted to stay in Hong Kong until the problem was resolved.
28. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duties of the TCAB and the Director. In general, this court would not interfere.
29. An oral hearing was held on 17/11/2020 on the request of the applicant. He reiterated that he would face danger from the opposite side (SAD). The situation would be the same. He had nothing further to add.
30. The applicant had not pointed out any specific error in the decisions of the TCAB and the Director.
31. In my judgment, there is no error of law or procedure. The decisions are reasonable.
Conclusion
32. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.”
Grounds for appeal
11. In the Notice of Appeal filed on 14 December 2020, the applicant stated that:
“On 4 December 2020 the High Court judge refused my leave application. But he could not show any good cause he just wrote I could not find any error of TCAB.”
12. The applicant agreed by a letter of 14 December 2020 that the appeal could be heard by two judges.
13. The applicant failed to comply with the direction made by this court on 21 April 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.
14. 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.
15. The hearing date on 22 June 2021 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
16. The only ground of appeal advanced by the applicant is that the judge failed to give good reasons for dismissing the leave for judicial review application. As noted by the judge at [30] of CALL-1 Form, the applicant did not identify any specific error in the decisions by the Board and the Director. His only ground for judicial review was that it would not be safe for him to return to India. The judge rightly held that the applicant was required to establish public law errors in the decisions by the Board and the Director and that he failed to do so. In the circumstances, we do not accept that this complaint against the judge has any merit.
17. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) |
(Linda Chan) |
| Justice of Appeal |
Judge of the Court of
First Instance |
The applicant acting in person
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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