RE HARPAL SINGH

CACV 472/2019

[2020] HKCA 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 472 OF 2019

(ON APPEAL FROM HCAL NO. 530 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 Bruno Chan (“the Deputy Judge”) as set out in the Form CALL-1 dated 2 October 2019, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1014. 

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 20 March 2018 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated respectively 26 November 2015 (“the Director’s First Decision) and 23 June 2017 (the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  The appeal was listed to be heard on 25 February 2020 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 24 January 2020 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 28 November 2019.

5.  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.

6.  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

7.  The applicant is a national of India.  He entered Hong Kong as a visitor on 23 August 2013.  He overstayed and was arrested on 15 May 2014.  He lodged a non-refoulement claim on 17 May 2014.

8.  The details of the applicant’s claim and his personal background were set out at paragraphs 5-6 of the Director’s First Decision and paragraphs 21-62 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that he would be harmed or killed by his uncle Major Singh (“Major”) due to a land dispute.  The applicant inherited his grandfather’s land in 2009.  In around September 2009, Major, who was a member of both the Bharatiya Janata party (“BJP”) and the Shiromani Akali Dal (“SAD”) party, approached the applicant and suggested that the land could be sold and the proceeds of which should be shared between him and the applicant.  The applicant refused.  In October 2009, Major and his son came to the land and demanded the applicant to transfer the land to Major.  They threatened to kill the applicant if he refused to comply with the request.  The applicant reported the threats to the police but it was of no avail because Major was a member of the ruling party.  Major later came to the land again and demanded the transfer.  The applicant refused and Major assaulted him with a wooden stick.  The applicant ran away to hide in his friend’s place and reported the incident to the police.  Again, the police took no action against Major.  The applicant then left for another village to work as a driver.  He said that he received many phone calls from Major who threatened to hunt him down.  In around November 2012, Major found the applicant and assaulted him again for his refusal to transfer the land.  Subsequently, the applicant left India but claimed that Major was still looking for him. 

The Director’s Decisions and the Board’s Decision

10.  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.

11.  The applicant appealed the Director’s Decisions to the Board.  On 8 March 2018, the Board conducted an oral hearing, during which the applicant answered questions from 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 Decisions.

12.  The Board found that the applicant was not a credible witness.  In particular, the applicant said that his grandfather executed an affidavit to transfer the land to him but he could not provide such document.  He failed to provide sufficient explanation as to why he was unable to secure the document during his four years in Hong Kong.  Further, the applicant had asserted facts at the hearing that were not even mentioned in the non-refoulement claim form (“NCF”).  The Board found his explanation that he had in fact provided the information but his lawyer from the Duty Lawyer Scheme did not include it in the NCF inherently incredible.  The Board was also of the view that the applicant’s evidence in relation to the parties Major was vague and lacked credibility.  As a result, the Board did not accept that the applicant was the registered owner of the land in dispute and that he was approached, threatened or assaulted by Major as alleged.  On this basis, the Board rejected the applicant’s claim.  See paragraphs 64-76 of the Board’s Decision.

The Deputy Judge’s Decision

13.  The applicant filed a Form 86 on 29 March 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decisions.  The grounds of review were summarized by the Deputy Judge at [16] of the Deputy Judge’s Decision:

“16. On 29 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2) that their decisions were not reasonable or fair as required by the Wednesbury test;

(3) that they failed to take into account that right to life must be protected from extra-judicial killings which he may face if deported to India; and

(4) that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.”

14.  The Deputy Judge heard the applicant’s leave application on 12 March 2019.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in [17]-[22] of the Deputy Judge’s Decision:

17. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his claim, or how did the adjudicator failed to give him sufficient time and opportunity to produce his evidence in support of his claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant. Even now more than one year after the Board’s decision that the applicant still did not produce any further evidence in support of his claim which he complained of not being given sufficient time or opportunity to do so by the Board. As such I fail to see how any of his proposed grounds can be considered as reasonably arguable for his intended challenge.

18. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

19. In the applicant’s case, the Board rejected his claim on its adverse findings on his credibility for the thorough and detailed analysis and reasoning set out in §§63 – 76 of its decision after having had the benefit of hearing him in evidence and in his answers to questions raised in respect of his claim, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

20. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision subsequently also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21. 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.

22. 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.

Grounds for appeal

15.  The applicant filed the Notice of Appeal on 8 October 2019 to appeal the Deputy Judge’s Decision.  The applicant simply stated that he was not satisfied with the Deputy Judge’s Decision because he still faced problems in his home country.  Other than that, he did not identify any errors in the Deputy Judge’s Decision.

Discussion

16.  The relevant legal principles governing the appeal in non-refoulement cases are set out at paragraph 14 of Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  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.

18.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Deputy Judge’s Decision with sufficient particulars and specifics.

19.  However, it is apparent from the Notice of Appeal that the applicant did not identify any errors committed by the Deputy Judge.  This is not a viable ground of appeal. 

20.  In any event, we have reviewed the Board’s Decision 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

21.  For the reasons given above, the applicant’s appeal has no merits.  Accordingly, we dismiss the appeal.