RE SANDHU RANJIT SINGH

CACV 228/2018

[2018] HKCA 779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 228 OF 2018

(ON APPEAL FROM HCAL NO. 849 of 2017)

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JUDGMENT

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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 Bruno Chan (“the Judge”) given on 12 June 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 30 July 2015 and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 1 September 2017 dismissing the applicant’s appeal against the Director’s decision of 30 July 2015 and a further decision dated 1 December 2016 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 19 October 2018.  The applicant was directed by the Registrar of Civil Appeals to lodge skeleton argument by 21 September 2018 and also warned that should he fail to do so, the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.  The direction and the warning were communicated to the applicant in the letter from the court dated 17 July 2018 and also in the notice of hearing dated 1 August 2018.  

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Due compliance with the requirement to lodge skeleton arguments is important for the proper and effective functioning of the appeal process since 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.  This Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement after being warned of the consequence of non-compliance, is treated as the abandonment of the right to an oral hearing. 

4.  As the applicant did not lodge his skeleton argument by the stipulated time, the hearing date for the appeal was vacated, and we have processed this appeal on paper based on the available materials before us.

5.  The applicant is an Indian national.  He first attempted to enter Hong Kong from Macau on 27 March 2015.  He was refused permission to land and was removed to Macau on the same day.  On 30 March 2015, he made another attempt to enter Hong Kong from Macau, and was again refused permission to land. With the assistance of his legal representative, he raised a non-refoulement claim on the basis that he would be harmed or killed by supporters of the Akali Dal Party (“ADP”) because he was a member of the rival party, Indian National Congress Party, and had refused to join their party.

6.  The applicant’s case was detailed in the decisions of the Director and the Board and summarized by the Judge in [2] to [6] of the Form CALL-1 dated 12 June 2018, [2018] HKCFI 1280 as follows: 

“2.   The applicant was born and raised in Village Sarhali, Tehsil Zira, Firozepur, Punjab, India to a family of supporters of the Indian National Congress Party (“INCP”) where his parents and sister still live. After leaving school the applicant worked by distributing newspaper for a news agency, and joined INCP as a member in 2011, but soon some ADP supporters started to approach him and pressed him to leave INCP and to join ADP instead, and when he refused, they would keep pressuring and harassing him whenever they saw him in the streets.

3.   In 2013 there was a village council election with two candidates respectively from ADP and INCP against each other, during which there were clashes between the supporters of the two parties in which the applicant was involved and was injured during one of the incidents when he was hit on the head by a rock, and on another occasion he and his fellow members of INCP were arrested and detained by police for one day after ADP supporters had made false charges against them.

4.   In 2014 there was another election for members of the Parliament during which the applicant participated by putting up posters and attending rallies, but one day he was abducted by several masked ADP people for refusing to join ADP and was brought to a farm where he was hung upside down from a tree and was punched and kicked and with his head held in a bucket of water until he lost consciousness. When he woke up the ADP people were already gone, but when he later reported the incident to the police, they only took a statement from him without following up with any further action.

5.   Several days thereafter in one of INCP rallies the applicant and his fellow members were attacked by ADP supporters with wooden sticks and baseball bats causing bruises to the applicant’s back. Thereafter some ADP supporters came to his home when he was not in and threatened and attacked his father with wooden sticks that caused bruises to his limbs and his back. After the ADP candidate won the election, and when the applicant started to receive threatening phone calls from the ADP supporters, he was advised by his father to take shelter at his aunt’s place at Village Golwaad, District Tarntaarn, Punjab where he stayed for 5 months without any incident until his aunt saw some men coming to the village asking about him when he decided to move to his cousin’s place in Guru Nanak Mahalla, Amritsar where he stayed for another 5 months.

6. However, in early 2015 his father was intercepted by some ADP people on the street who took hold of his mobile phone and obtained the applicant’s phone number, and as a result the ADP people started calling the applicant on the phone demanding that he should return to his home village to join ADP or else they would locate him and kill him. Afterwards the applicant was advised by his father to leave India for his own safety, and so he arrived in Hong Kong on 30 March 2015 and lodged his non-refoulement claim, for which he subsequently completed his Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service (“DLS”).”

7.  By Notice of Decision dated 30 July 2015 and a Notice of Further Decision dated 1 December 2016, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds while the further decision covered the BOR 2 risk[4] ground.    

8.  The Board heard the applicant’s appeal against the Director’s decisions on 15 February 2017.  The applicant elected to give evidence with the assistance of an interpreter.  By its decision dated 1 September 2017, the Board dismissed the appeal.  The Board found there were no substantial grounds for believing that the applicant had been subject to torture or ill-treatment, or that he would be in danger of being subjected to torture, ill-treatment, persecution or violation of his absolute and non-derogable rights under the HKBOR if he were to be refouled to India.  The Board concluded that the applicant had failed to make out a case on any of the four applicable grounds.

9.  The applicant filed his Form 86 and a supporting affirmation on 6 November 2017 seeking leave to apply for judicial review against the decisions of the Director and the Board.  The applicant raised four grounds in support of the relief sought:

(1) Lack of legal representation in the appeal to the Board

(2) Lack of language assistance in that he was not provided with a copy of the translation of his NCF such that he was unable to find out if his claim had been properly presented.

(3) He did not receive the Director’s letter inviting him to submit additional facts relevant to the BOR 2 risk assessment.

(4) Lack of fair hearing in that the Director was not required to attend the hearing before the Board.

10.  At the applicant’s request, an oral hearing was held on 24 April 2018.  The Judge refused to give leave and gave his reasons at [13] to [19] of the Form CALL-1 as follows:

“13. For his ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in the appeal process, and I do not think this ground is arguable.

15. As for his complaint under ground (2) of not being given a translation of his NCF so that he could make sure that the basis of his claim had been properly translated or interpreted, it is clear that his NCF was completed on his instructions with legal representation from the DLS, and that he was assisted by an interpreter at his appeal hearing before the Board, hence in the absence of any particulars or specifics from him to demonstrate that the basis of his claim has indeed been wrongly or inaccurately interpreted, I find this ground simply speculative and without any merit.

16. Regarding ground (3) in which the applicant complains of not receiving the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk, or the subsequent further decision of the Director, if indeed it is true that he never received the Director’s letter dated 15 November 2016 inviting him to submit additional facts relevant to BOR 2 risk or his further decision dated 1 December 2016, it is clear that by the time of his appeal hearing on 15 February 2017 before the Board, he would have learnt about them from the hearing bundle provided to him by the Director, but of which he never raised any issue to the adjudicator at the hearing or to the Board thereafter or made any attempts to submit any additional facts or materials up to the time of its decision on 1 September 2017. Even now in his leave application he did not state or produce any additional information relevant to BOR 2 risk or otherwise. In the circumstances I do not find any merit in this complaint of the applicant.

17. As for his last ground about the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board. There is simply no basis or merit in this ground of the applicant.

18. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

11.  In the Notice of Appeal dated 14 June 2018, the applicant stated that he could not go back to his country because he would not be safe there, and asked to be allowed to stay in Hong Kong until his problem was solved. 

12.  What was said by the applicant did not amount to proper ground of appeal.  He has not identified any error in the Judge’s reasons and decision.  There is no basis on which we can interfere with the Judge’s decision. The appeal has no merit.  Accordingly, we dismiss the appeal.