RE DHALIWAL GURCHARAN SINGH

CACV 142/2018

[2018] HKCA 751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 142 OF 2018

(ON APPEAL FROM HCAL NO. 437 of 2017)

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JUDGMENT

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

1.  On 10 September 2018, this Court (Yuen and Chu JJA) handed down our judgment (“the Judgment”) dismissing the applicant’s application for leave to appeal out of time against the decision of Deputy High Court Judge Woodcock given on 4 May 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 17 September 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.  On 4 October 2018, the applicant also put in a written submission in support of his application. 

3.  Pursuant to paragraph 3 of Practice Direction 2.1 on Applications for leave to appeal to the Court of Final Appeal filed in the Court of Appeal in Civil Cases, we consider it is appropriate to deal with this application on paper without an oral hearing.

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  The Notice of Motion set out the following grounds of appeal:

“(1) I could not provide a full picture of the grounds of appeal because of the lack of language assistance provided to me throughout the case.

(2) The failure to lodge the skeleton submission was due to an oversight as a result of the lack of language assistance.

(3) While I appreciate that the findings towards my case has been credible, I do not agree that it is possible for me to relocate to other parts of India. This is because in doing so I will either have to move myself or to take my whole family with me.  If I move myself, my family will be at risk of being harmed while they are on the way to the other city.  If I were to move, I will still be at risk despite Dilbag being a low-level political figure.  Dilbag was low-level in 2016 when there was an election, and I believe the authorities should be considering the risk that happens if I return, which should not be considerable based on his influence in 2016, but rather in 2018.”

6.  The written submission essentially repeated what was stated in the Notice of Motion.

7.  The matters set out in the Notice of Motion and the written submission relate to the facts of the applicant’s case. They are case-specific and do not involve any question of great, general or public importance. 

8.  Further, there is no merit in the complaint of lack of language assistance.  The Notice of Appeal had set out the grounds of appeal in clear terms. 

9.  As to the complaint about the Board’s finding that internal relocation alternatives were reasonably available, this was not among the grounds for judicial review before the Judge.  Nor was it one of the grounds of appeal before this Court.  It is not open to the applicant to raise new issues and new arguments in an application for leave to appeal to the Court of Final Appeal.

10.  In any event, this new ground is not reasonably arguable.  In addition to Dilbag being a low level political figure, the Board also found, on the available information, that the Akali Dal Badal Party was only a very junior member of the coalition government, and the power of Dilbag has reduced since the 2016 Punjab election.  The Board accordingly concluded there was no real risk of the applicant being harmed by Dilbag and the Akali Dal supporters if he was refouled to India and relocated to live in other parts of the country.  There is no proper basis for the Court to interfere with the findings and conclusion of the Board.

11.  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision. 

12.  In the circumstances, the condition for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.

CACV 142/2018

[2018] HKCA 587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 142 OF 2018

(ON APPEAL FROM HCAL NO. 437 of 2017)

________________________

________________________

_________________

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 Woodcock (“the Judge”) given on 4 May 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 16 June 2016 and 12 June 2017 rejecting his non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 6 July 2017 dismissing his appeal against the Director’s decisions.  

2.  The appeal was listed to be heard on 29 August 2018.  The applicant was directed to lodge two sets of skeleton argument by 1 August 2018, and warned that should he fail to do so, the hearing date would be vacated and the appeal would be proceeded on paper based on materials filed in the Court. The direction and the warning were communicated to the applicant in the letter from the court dated 31 May 2018 and the notice of hearing dated 18 July 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 default, is treated as the abandonment of the right to an oral hearing.  In the present case, as the applicant failed to lodge skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

4.  The applicant is an Indian national.  He arrived in Hong Kong on 17 August 2013 and was given permission to remain as a visitor until 31 August 2013.  He overstayed and was arrested by the police on 15 September 2013.  On 17 September 2013, he made a non-refoulement claim based on his fear that, if refouled to India, he would be harmed or killed by a man called Dilbag Singh (“Dilbag”) and supporters of the Akali Dal Badal Party (“Akali Dal”) because he was a supporter of the rival party, Indian Congress Party (“ICP”). 

5.  The facts of the applicant’s claim were set out in considerable details in [9] of the Board’s decision, and summarised by the Judge in [3] to [7] of the Form CALL-1 dated 4 May 2018 as follows:

“3. The applicant was born in 1982 in the Punjab, is married with three children and is a supporter, not a member of the Congress party. In June 2013 the applicant’s uncle was a candidate in the election for the position of village head in his village and the applicant helped him canvass votes door-to-door but his uncle lost the election to Dilbag who was a member of the Akali Dal. During his victory parade Dilbag and his supporters paraded through the village but stopped outside the applicant’s family home and taunted his uncle. They used foul language insulting the women of their family so the applicant’s father confronted them but was knocked down the ground in the fracas. The applicant and his uncle rushed to help him but were attacked by flagpoles and swords.

4. The applicant lost consciousness and woke up in hospital with multiple wounds as did his father and uncle. Members of the Congress party had taken the three men to hospital. The attacks were reported to the police but it was not investigated because the Akali Dal were now the ruling party. When all three men were discharged from hospital they made a police report in person and the police officer told them they would investigate Dilbag. The applicant later found out that Dilbag bribed the police to do nothing.

5. After the applicant and his uncle went home to recuperate, Dilbag and his supporters continue to harass them outside their home verbally and regularly. This frightened the applicant who locked his doors and stayed inside. His father told the applicant and his uncle to leave home and hide for a while.

6. The applicant travelled to his maternal grandparents’ village which was about 35 km away and hid there for about six weeks. He stayed inside the house at all times. Then his parents told him that the police were investigating him for a false charge of drug possession which the applicant believed was falsely reported by Dilbag.

7. The applicant then planned to leave India because he felt his life was in danger from the Akali Dal.  His friend arranged for him to travel to Hong Kong via China.  He left on 10 August 2013.”

6.  By a Notice of Decision dated 16 June 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], the BOR 3 risk[2] and the persecution risk[3].  On 30 June 2016, the applicant lodged an appeal to the Board against the Director’s decision. 

7.  Meanwhile, by letter dated 26 May 2017, the Director invited the applicant to provide additional facts relevant to an assessment of the BOR 2 risk[4].  The applicant responded by letter dated 9 June 2017, in which he said that despite the ICP had become the majority party in Parliament and the ruling party, Dilbag has continued to be the village head and the ICP did not have the funding or soft influence as the Akali Dal.  The applicant also stated that Dilbag’s people had attacked his brother in about April 2017 to force him to disclose the applicant’s whereabouts, and that although a report was made, the local police had refused to take any action.  By a further decision dated 12 June 2017, the Director decided against the applicant on the BOR 2 risk ground.    

8.  On 20 June 2017, the Board heard the applicant’s appeal on all the applicable grounds.  The applicant was represented by a barrister assigned by the Duty Lawyer Scheme and the Director was represented by government counsel. Prior to the hearing, at the direction of the Board, the applicant’s barrister had sent in written submission on country information relating to the result of the legislative assembly election held in Punjab in January 2017 and the impact on the assessment of the applicant’s risk if refouled.  The applicant’s barrister also provided to the Board some country of origin information reports on India. 

9.  On the analysis set out in [27] to [43] of its decision dated 6 July 2017, the Board accepted the bulk of the applicant’s evidence. This includes: (i) past harm done to him, his father and his brother at the hands of Dilbag and the Akali Dal supporters; (ii) the attack on him and the resulting injuries; (iii) the verbal abuse made by Dilbag and the Akali Dal supporters, who continued to look for him after he relocated to live with his grandparents; (iv) Dilbag corruptly influenced the local police not to take action on the complaints made by the applicant, his father and uncle, and also to lay false charges against the applicant for drug offences; (v) because the charges were not genuine, the applicant was able to depart India on his Indian passport; (vii) Dilbag remained the village head and retained power in the applicant’s home village; and (viii) there remained a level of animosity between him and the applicant. 

10.  On the accepted facts, the Board found there was a real risk Dilbag might be violent towards the applicant if he returned to his home village.  However, the Board considered the applicant would not face undue hardship and it was reasonable for him to relocate to cities such as Mumbai, Chennai or Kolkata.  Further, given the reduced power of Dilbag and Akali Dal since the 2016 Punjab election, Dilbag was a low-level political figure and Akali Dal was a very junior member of the coalition government, the Board considered there was no real risk of the applicant being harmed by Dilbag and the Akali Dal supporters, if he was refouled to India and relocated to Mumbai, Chennai or Kolkata.     

11.  The Board therefore concluded there was not a real risk the applicant would face persecution for a Convention reason if he was refouled and relocated to live in Mumbai, Chennai or Kolkata.  The Board further decided that the applicant had failed to establish he would face a real risk of torture or ill-treatment or being deprived of his right to life.  The Board accordingly dismissed the appeal.     

12.  The applicant filed his Form 86 on 24 July 2017 seeking leave to apply for judicial review against the Director’s and the Board’s decisions.

13.  In his affirmation filed together with the Form 86, the applicant raised two principal grounds:

(1) The Duty Lawyer Scheme did not provide the applicant with a translation of his non-refoulement claim form, notably Answer 35, so he had no means of finding out if the basis of his claim had been properly translated.

(2) Having accepted that the applicant, his father and uncle had been attacked by Dilbag and his followers and had sustained injuries, the Board was wrong to decide that the applicant failed to establish he would face a real risk of torture if refouled to India.

14.  On the applicant’s request, an oral hearing was held on 28 December 2017.[5]  The Judge refused to give leave to apply for judicial review for the reasons stated in [14] to [21] of the Form CALL-1:

“14. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence meticulously. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

15. The applicant has wrongly proposed both the Director and the TCAB as respondents as well as the interested parties in his Form 86. However, there are no grounds in his affirmation that are aimed at the Director. I therefore propose to consider this application against the decision of the TCAB only. In any event, the applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB, after all, he was legally represented in his appeal.

16. There are only two grounds in his affirmation and the first ground is a complaint that the duty lawyer service did not provide him with a translation of his Answer 35 from his non-refoulement claim form as he requested. To be deprived of a translation was to jeopardise his rights. He wanted to ensure that the interpreter had translated his claim properly. During submissions in the oral hearing the applicant told the court in answer to a question that he did not know what an Answer 35 was. This makes it unlikely he requested a translation of it.

17. If the applicant’s claim had not been translated properly from the outset it would have come to light very quickly, especially as the applicant was represented not only before the Director but before the TCAB as well. There is no evidence of any misinterpretation or mistakes made. There is no merit to this ground.

18. The second ground is a complaint that the adjudicator has made a wrong finding of fact and law. The adjudicator found the applicant had not established any torture or persecution risk. The applicant points out that the adjudicator accepts that he was attacked, injured and hospitalised. He accepts he even bears the scars from those wounds. Yet the applicant does not understand how he has failed to establish he will face a real risk of torture as defined by section 37U of the Immigration Ordinance.

19. As I said above, the adjudicator’s findings are set out in detail and reasons are given in full. I see no faults with his findings nor will I interfere with his findings. I see no merit in this ground.

20. I see no error of law in the adjudicator’s decision. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. In fact, this adjudicator has set that bar very high. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21. In my judgement the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

15.  In the Notice of Appeal dated 8 May 2018, the applicant reiterated his complaint that he was not given a translation of his non-refoulement claim form.  He took issue with the Judge’s observation in [16] of the Form CALL-1 that it was unlikely that he had requested a translation of Answer 35 of his non-refoulement claim form, and explained that Answer 35 in his language was called the “story”.  He further stated that although he was legally represented before the Board, since his lawyer did not speak his language, he would not know whether there was any error in the translation and could not properly advise him.  The applicant complained it was procedurally unfair that all the documentation was in English when he could not read or write English, adding that he did not wish to rely solely on oral interpretation as the safety of his life was at stake.      

16.  In our view, the applicant’s complaint about not being given a translation of his non-refoulement claim form and Answer 35 does not assist his intended judicial review application.  It is immaterial whether his non-refoulement claim form or Answer 35 was accurately translated.  This is because the bulk of the facts of his case was accepted by the Board as plausible and credible (see [9] above).  In fact, the Board accepted there was a real risk Dilbag might be violent towards him if he returned to his home village.  The applicant’s appeal was dismissed because the Board considered internal relocation alternatives were available, and there would be no real risk of harm if he relocated to places outside his home village such as Mumbai, Chennai or Kolkata.       

17.  There is no merit in the applicant’s ground of appeal.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused.  Accordingly, we had dismissed the appeal.