RE RAJPREET SINGH

CACV 94/2018

[2018] HKCA 472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 94 OF 2018

(ON APPEAL FROM HCAL NO. 405 of 2017)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 23 March 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 11 July 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 4 September 2015 and 16 February 2017 rejecting his non-refoulement claim.

2.  The appeal was listed to be heard on 31 July 2018.  The applicant was directed to lodge a skeleton argument not less than 28 days before the hearing and also warned that should he fail 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 dealt with on paper.  The direction and the warning was communicated to the applicant in two letters from the Court dated 2 May and 8 June 2018.

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by 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 material 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 the abandonment of the right to an oral hearing.  In the present case, as the applicant failed to lodge any skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available material.

4.  The applicant is an Indian national.  He arrived in Hong Kong on 24 March 2014 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 27 April 2014.  On 29 April 2014, he lodged a non-refoulement claim based on his fear that, if he returned to India, he would be harmed or killed by his business partner, Lakha Singh (“LS”), over a business dispute and his creditor, Tarsem Singh (“TS”), arising from an unpaid loan. 

5.  The applicant’s case is that in 2012, he started a real estate business with LS, who was his friend’s uncle, in Jandiala Guru, Amritsar, Punjab, which was about 15 km from his home village.  LS engaged in a variety of businesses and was a member of the Akali Dal Party.  In June 2013, the applicant agreed with LS to invest in the purchase of a plot of land.  As he did not have sufficient funds to contribute to the investment, he borrowed from TS, who was a rich man in the applicant’s village, to be repaid by the end of 2013.  When the value of the land dropped, the applicant wanted to sell the land or to sell his share to LS, but LS did not agree.  One day, the applicant together with his friend, who was LS’ nephew, visited LS at his home and told him he needed to sell the land to repay his loan.  LS accused the applicant of humiliating him in front of his family members and warned him he had to bear the consequences of humiliating him.  

6.  The applicant said there were three attacks by LS.  The first happened two weeks after his visit to LS’ house when LS brought five to six men to the applicant’s home and assaulted him.  Before leaving, LS threatened to kill him if he came near him and asked for money.  He also warned the applicant not to report to the police.  Three to four days later, LS came knocking on the door of his house again.  The applicant managed to run away. On the applicant’s request, his friend went to speak to LS.  He was assaulted by LS who was angry with him for bringing the applicant to his home to ask for money.  Afterwards, LS went with several people to the applicant’s home for a third time.  The applicant was not in.  LS shouted abusive language at the applicant’s mother and made threats to her.

7.  The applicant also said that at about the same time TS called to demand repayment of the loan.  One day, TS brought three men to the applicant’s house.  The applicant was not at home, so TS asked his mother to tell him to make repayment.  A week after this, TS came with the three men again.  He told the applicant’s mother that he would not spare the applicant, and repayment must be made or he would harm him.

8.  Between January and early March 2014, the applicant hid at his maternal aunt’s house, which was about 22 to 25 km away from his home, while making arrangement to leave the country.  During this time, TS went to his home seven or eight times and made verbal threats to his mother.  On 6 March 2014, the applicant flew from Delhi to Bangkok, then to Macao and eventually arrived in Hong Kong.  

9.  By a Notice of Decision dated 4 September 2015, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].  By letter dated 21 November 2016, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk[4]. Not having received a response from the applicant, the Director proceeded to consider the applicant’s claim on the ground of BOR 2 risk based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 16 February 2017, the Director decided against the applicant.

10.  The Board heard the applicant’s appeal against the Director’s decisions on 10 April 2017.  The applicant told the Board he had nothing more to add.  By its decision dated 11 July 2017, the Board dismissed the appeal.  The Board found the applicant had failed to make out a case that he genuinely needed non-refoulement protection, having regard to the low intensity and severity of the threat and attack and injuries, the private nature of the applicant’s dispute with TS, and the non-involvement of any government official in the threats and attacks by LS.  The Board, having considered the Country of Origin (COI) Information, was also of the view that state protection was available and internal relocation was viable.  The Board concluded that the applicant failed to make out a claim under all the four applicable grounds in that there was no real risk of the applicant being subjected to torture upon his return to India, he did not suffer any ill-treatment that met the minimum level required by the law, his fear of ill-treatment did not fall within the meaning of persecution under the Convention and there was no personal and real risk of a violation of the right to life.    

11.  The applicant filed his Form 86 on 14 July 2017 seeking leave to apply for judicial review against the Board’s decision.  The applicant’s supporting affirmation filed on the same day advanced the following grounds in support of the relief claimed:

(1)   The Board failed to carry out sufficient research and enquiry into COI conditions and was selective in approaching to COI information.

(2)   The Board failed to evaluate and make a finding of fact that there was in India a consistent pattern of gross and flagrant abuses of human rights.

(3)   The Board failed to have regard to the fact that LS belonged to, and had connections with, a political party.  The dispute was not a private dispute.  LS’ party was a known terrorist party, and internal relocation was not possible.

(4)   The Board erred in law in failing to consider and assess whether state protection existed.  It did not exist in reality.

(5)   The applicant was not given a chance to submit additional facts and grounds.  He did not receive the Director’s letter inviting additional information relevant to the BOR 2 ground.  The Board said he had nothing to add at the hearing, but the meaning of BOR 2 and further and additional information relating to BOR 2 was not properly explained by the interpreter.  The interpreter did not fulfil his duty fairly as the applicant was not asked for further information or to add anything.     

12.  An oral hearing was held to hear the leave application.  On 23 March 2018, the Judge dismissed the application and gave the following reasons in [14] to [21] of the CALL-1 Form:

“14. 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. He analysed material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

15. The applicant submits the adjudicator failed to carry out sufficient research and enquiry into COI conditions and was selective which upon a reading of the adjudicator’s decision is unsubstantiated. The material he considers is objective, relevant and up-to-date. He gives reasons for his finding that there is available State protection. I find no evidence of cherry picking. There is no merit in this ground.

16. The applicant submits that the adjudicator has failed to evaluate and make a finding of fact that there exists in India a consistent pattern of gross and flagrant abuses of human rights. This is not part of the applicant’s case nor relevant to him. He did not make any report to the police and there is no evidence that the police would not offer him protection or investigate any complaint from him.

17. The applicant complains that the adjudicator did not consider the fact that LS belongs to a political party and had political party connections. The adjudicator did consider this and found there to be no evidence that LS’s membership to ADP meant any risk to the applicant. There is no merit in this ground.

18. The adjudicator is accused of an error in law by failing to consider whether State protection existed. There is a criticism that the applicant was unable to properly put forward a claim under BOR 2; he was unable to submit additional information in time because he did not receive the Immigration Department’s letter. It appears he suggests that the interpreter misinterpreted what he had to say to the adjudicator in relation to his BOR 2 risk. These details are without particulars and the complaint about correspondence was not raised with the adjudicator. In open court, he submits he told the interpreter that he did not receive the letter but there is no record of this in the decision. There is no reason for the interpreter not to interpret to the best of his ability and correctly. There is no merit in these complaints.

19. There are further complaints about the interpretation by the interpreter. This is followed by complaints the adjudicator failed to consider police corruption properly but the applicant made no police report and did not face a situation where he was refused help from the police. He disagrees that he can relocate when his enemies belonged to a very strong political party that can find him anywhere in India. He accuses the adjudicator of not checking the COI which will prove this fact. He submits the adjudicator failed to consider his mental anguish which can equate to torture. None of these complaints are substantiated nor are particulars given; none are reasonably arguable.

20. In this affirmation the applicant then adds new evidence that his sister has been shot by his enemy for refusing to disclose his whereabouts. He then says his brother-in-law has made a police report but the police have not investigated this report honestly and no one has been arrested. He adds new evidence that his enemies have reported him to the police for false charges, it would appear for murdering a politician and he is now a wanted man and could face the death penalty or life imprisonment. This is evidence that was not before and considered by the TCAB therefore, will not be considered by this court.

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.  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.”

13.  In the Notice of Appeal dated 6 April 2018, the applicant advanced the following grounds of appeal:

(1)   The Judge did not put weight on his new evidence, which is an important piece of evidence to prove that the problem still exists and has escalated, and to show that there had been cherry-picking of the COI information.

(2)   The Judge failed to take into account the issue of translation.  The applicant had told the interpreter he did not receive the Director’s letter but there was no record of this in the Board’s decision and the adjudicator also did not ask him about it.

14.  In respect of the first ground, the new evidence referred to by the applicant was summarised by the Judge in [20] in the CALL-1 Form.  This Court has repeatedly emphasised that judicial review does not operate as a rehearing of a non-refoulement claim.  The proper occasion for an applicant to present his case is in the screening process and his interview with the immigration officer and in the appeal before the Board.  In judicial reviews, the Court exercises a supervisory jurisdiction and is concerned with reviewing the legality and rationality of the decision under challenge and the propriety of the process by which the decision is arrived.  The Court will not assume the role of the Director and the Board as the primary decision maker to re-assess the merits of the applicant’s claim.  It is also to be noted that the new matters put forward by the applicant are only assertions.  In these circumstances, the Judge cannot be faulted for declining to consider the new material that was not before and considered by the Director and the Board when they made their decisions.

15.  As for the second ground, it is incorrect to say that the Judge did not consider the applicant’s complaints about the interpreter and the accuracy of the interpretation at the hearing before the Board.  The Judge had in [18] and [19] of the CALL-1 Form dealt with the applicant’s complaints and explained why they were not accepted.  We see no basis for interfering with her conclusion.

16.  Like the Judge, we also do not discern any error of law or procedure in the decisions of the Director and the Board or any unfairness in the process.  We agree that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.