RE TAMANG BHIM BAHADUR

CACV 148/2018

[2018] HKCA 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 148 OF 2018

(ON APPEAL FROM HCAL NO. 654 of 2017)

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JUDGMENT

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

1.  On 27 September 2018, this Court (Cheung and Chu JJA) handed down our judgment (“the Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 May 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 3 October 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

3.  Pursuant to the directions of the Registrar of Civil Appeals given, the applicant had lodged a written submission on 18 October 2018.

4.  In accordance with paragraph 3 of Practice Direction 2.1 Application for leave to appeal to the Court of Final Appeal filed in the court of Appeal in Civil Cases, we have processed the present application on paper.

5.  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.

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

(1) The applicant was not aware that he had to lodge skeleton submission, and he did not know what skeleton submissions mean (“Ground (1)”).

(2) An oral hearing was essential to the applicant’s case because he could not read, write or speak English and could only rely on external help, which was not professional help (“Ground (2)”).

7.  The applicant’s written submission made the following further points:

(1) If the requirement for skeleton submissions had been translated or interpreted to the applicant, he would be able to comply with it (“Point (1)”).

(2) Since the applicant was a non-refoulement claimant, he should have been given the benefit of the doubt even though he failed to comply with the Court’s direction.  As he had requested for an oral hearing in his Notice of Appeal, the applicant should have been granted an oral hearing to discuss his case (“Point (2)”).

(3) The Director had failed to give him a fair hearing on the BOR 2 assessment (“Point (3)”). 

(4) It was unfair for the Court to observe that at the oral hearing before the Board, the applicant did not raise with the Board that he had difficulties understanding what a BOR 2 assessment entailed because he was unaware of his rights and could not have raised any issue on it (“Point (4)”).

8.  All the matters advanced by the applicant relate to the circumstances of his non-refoulement claim and his case.  They do not involve any question of great general or public importance.

9.  In any event, the proposed grounds of appeal are unarguable.  Firstly, the Court had by two letters informed the applicant of: (i) the direction to lodge skeleton argument no less than 28 days before the hearing; (ii) what is required of a skeleton submission; and (iii) the consequences if he failed to comply with the direction.  The applicant does not dispute he had received the Court’s letters.  As the appellant having the conduct of the appeal, if indeed he did not understand the letter or what was required of him, he should have taken step to find out and could not just put the letters to one side.  There is, however, no indication of what step he had taken to ascertain the content of the letters and the Court’s direction. Ground (1) and the argument in Point (1) have no merit.         

10.  Secondly, we had in paragraph 3 of the Judgment explained the reasons underlying the requirement to lodge skeleton submission and the Court treating failure to comply with the requirement after being warned of the consequence of default as the abandonment of the right to an oral hearing.  There is no merit in Ground (2) and Point (2).

11.  Thirdly, for the reasons given by the Judge in the Form CALL-1 dated 4 May 2018 and by this Court in paragraph 15 of the Judgment,    the complaints in Points (3) and (4) cannot stand.

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

13.  As the condition for giving leave to appeal is not met, we dismiss the Notice of Motion.

CACV 148/2018

[2018] HKCA 616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 148 OF 2018

(ON APPEAL FROM HCAL NO. 654 of 2017)

______________________________

______________________________

________________

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 Bruno Chan (“the Judge”) given on 4 May 2018 refusing him leave to apply for judicial review.  The intended judicial review is against two decisions of the Director of Immigration (“the Director”) dated 28 June 2016 and 31 May 2017 rejecting his non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 6 September 2017 dismissing his appeal against the Director’s decisions.  

2.  The appeal was listed to be heard on 7 September 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 1 June 2018 and 25 July 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 a 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 a Nepali national.  He arrived in Hong Kong on 16 January 2014 and was given permission to remain as a visitor until 19 January 2014.  He overstayed and was arrested by the police on 15 July 2014. On 17 July 2014, he lodged a non-refoulement claim based on his fear that, if he were to return to Nepal, he would be harmed or killed by members of a rivalry political party, the Maoists, due to his participation in a fight that took place in November 2013 involving the Maoists and supporters of the Nepali Congress Party that he supported.

5.  The applicant’s case was set out in [22] to [33] of the Board’s decision, and summarised by the Judge in [2] to [4] of Form CALL-1 dated 4 May 2018, [2018] HKCFI 931 as follows:

“2. The applicant was born and raised in Nuwakot District, Nepal where his parents still live and where his father still works as a civil servant in the Department of Customs. After leaving school the applicant worked as a social worker in his home district.

3. In 2013 the applicant started supporting the Nepali Congress Party (“NCP”), and although he was not a member nor held any position in the party, he assisted in their rallies and campaigns during local elections. One day during an election rally in his home village, a fight broke out between the members and supporters of NCP and the Maoists, and while the applicant was not injured in the fight he became frightened of the Maoists.

4. About a month later when the applicant heard that some men had died from their injuries after the said incident, he became concerned for his own safety, and on his father’s advice he decided to leave Nepal on 15 January 2014, arriving in Hong Kong on 16 January 2014 in transit for Mainland China, but when he heard from his mother on 18 January 2014 that the Maoists were looking for him for revenge and that he should not return to Nepal, he decided to remain in Hong Kong and subsequently raised his non-refoulement claim by completing his Non-refoulement Claim Form (“NCF”) to the Immigration Department on 16 February 2016 with legal representation from the Duty Lawyer Service.”

6.  By a Notice of Decision dated 28 June 2016, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1], the persecution risk[2] and the torture risk[3].      

7.  On 11 July 2016, the applicant appealed to the Board against the Director’s decision.     

8.  In the meantime, by letter dated 15 May 2017, 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 BOR 2 risk ground based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 31 May 2017, the Director decided against the applicant.

9.  On 24 August 2017, the Board conducted an oral hearing of the applicant’s appeal against the Director’s decisions.  The Board considered the applicant’s claim on all applicable grounds, namely, persecution risk, BOR 3 risk, BOR 2 risk and torture risk.  The applicant gave oral evidence and answered questions from the Board, assisted by an interpreter of the Nepali language

10.  By its decision dated 6 September 2017, the Board dismissed the appeal for the reasons given in paragraphs [34] to [52].  The Board accepted that the applicant was a supporter of the Nepali Congress Party in the lead up to the 2013 election, and that it was possible that he was caught up in a violent altercation between Maoist supporters and Congress Party supporters. While doubting whether people were killed in the altercation since there was no report of this in the reliable country of origin information, the Board was prepared to accept that there were people injured in the fight on election day and possibly killed.  The Board, however, did not accept that the applicant had been and continues to be pursued by the Maoists for the reasons and analysis given in [37] to [42] of its decision.  As the Board was not satisfied that the applicant, if refouled to Nepal, would be harmed by the Maoists, it concluded that the applicant failed to establish his claim under any of the applicable grounds.     

11.  The applicant filed his Form 86 on 21 September 2017 seeking leave to apply for judicial review against both the decisions of the Director and of the Board.  The applicant’s supporting affirmation filed on the same day advanced the following grounds in support of the relief claimed:

(1)   He was not given legal representation in the BOR 2 assessment by the Director and in his appeal before the Board, which amounted to violation of the high standard of fairness and miscarriage of justice.

(2)   He was not provided with a translation of his Non-refoulement Claim Form (“NCF”) and could not ascertain whether the interpreter had correctly translated the basis of his claim.  He was also not given language assistance in his appeal to the Board. 

(3)   The Director failed to give reason for determining against him in the BOR 2 risk assessment.

(4)   The Director failed to give him a fair hearing on his BOR 2 assessment.  The Director proceeded on the assumption that he chose not to reply to the letter inviting additional information on the BOR 2 claim, when in fact he had not received the letter and he would not be able to read and understand the content of the letter without legal representation.  There was also no reason given for excusing the Director from attending the hearing of his appeal before the Board.

12.  At the applicant’s request, an oral hearing was held on 11 April 2018 to hear the leave application.  The Judge refused to give leave to apply for judicial review for the reasons in [11] to [17] of the Form CALL-1:

“11. For the applicant’s first ground of lack of legal assistance during those two stages of the proceedings of his claim, the Court of Appeal has 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: 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.

12. It is clear that the applicant already had the benefit of legal representation in presenting his case to the Director at least up to his first decision, and was able to give evidence and answered questions to the adjudicator for the Board in his appeal without any difficulty. Even now in his leave application for judicial review with an oral hearing before me, the applicant did not state or outline what further information or representation that he wished to make but unable to do so regarding his claim under BOR 2 risk before the Director or his appeal before the Board, and I do not find anything amiss arising from the non-availability of legal representation in those proceedings.

13. As for his complaint of no language assistance for him “to find out if the interpreter has been translating my basis of claim properly and could have potentially led to injustice”, it is clear that his claim by way of his NCF was prepared by him with the assistance of his legal representation which continued up to the first decision of the Director which has been properly translated to him with legal assistance, and I also note that both his Form 86 for leave to apply for judicial review and his supporting affirmation are in English but which he signed and affirmed without interpretation, it would simply be unrealistic and impractical for him to be provided with an interpreter at all time during his appeal before the Board, so long that he was properly assisted by interpreter at his oral hearing during which he was able to testify and make representation to the Board without any difficulty. Again I do not find any merit in this ground of the applicant.

14. For his ground (3) in which he complained of no reasons being given by the Director in rejecting his claim under BOR 2 risk, clearly this has no merit at all as the Director did explain in paragraphs 3 – 6 of his Notice of further decision why the applicant’s claim under BOR 2 risk was rejected, and in the absence of any additional facts or representation provided by him despite the Director’s invitation for him to do so, the Director was clearly in my judgment entitled to reject such claim based on the facts previously presented by him with legal representation.

15. The last ground of the applicant also clearly has no basis or merit at all, as there is no rule requiring the Director’s attendance in his appeal before the Board, which is after all a rehearing of his claim and I fail to fathom the logic for the Director’s attendance or to see how he would be prejudiced by the Director’s absence.

16. 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 of their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

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

13.  In the Notice of Appeal dated 10 May 2018, the applicant stated that he disagreed with the Judge’s decision because:

(1)   The Judge addressed the issues in his case one by one when his case should have been viewed as a whole. 

(2)   The Judge should have considered his complaint on the BOR 2 assessment together with his complaint of not being given language assistance.  Although the Form 86 and the supporting affirmation were written in English and signed without interpretation, his English standard was not to such a level that he could be certain of his rights and the technical legal terms.  Also, the help from his friend was not unlimited.  He received no assistance when being asked to provide the additional information for the BOR 2 assessment.  It cannot be assumed that he would be fully aware of his rights and could express himself to the fullest in writing.

14.  In respect of the first ground, the Judge had properly considered and dealt with the grounds for judicial review put forward by the applicant.  He did not err in addressing the applicant’s grounds one after another. 

15.  There is also no merit in the second ground.  Firstly, before the Judge, the applicant’s complaint on lack of language assistance was a general one and was not specifically directed at the BOR 2 assessment, whereas his complaint in relation to BOR 2 assessment had made no reference to the lack of language assistance (see [11] above).  Secondly, the applicant was provided with a Nepali interpreter at the hearing before the Board, and he did not raise with the Board that he had difficulties understanding what a BOR 2 assessment entailed.  Thirdly, the applicant has taken this part of the Judge’s reasons out of context.  At [13] of Form CALL-1, the Judge was dealing with the applicant’s complaint that he was not given a translation of his NCF.  The Judge rejected the complaint on the basis that the NCF was prepared when he had legal representation.  The Judge went on to observe that his Form 86 and his supporting affirmation were written in English and he signed and affirmed them without interpretation, before concluding that what was important was that he was properly assisted by interpreter at the hearing before the Board during which he had testified and made representation without any difficulty.  We do not discern any error in the Judge’s reasoning and determining of this ground of judicial review.

16.  We agree with the Judge that the applicant’s 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 dismiss the appeal.