RE CHELLAM GOVINDAN

CACV 282/2018

[2021] HKCA 324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2018

(ON APPEAL FROM HCAL 845 /2017)

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J U D G M E N T

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

1.  On 10 December 2018, this court (Chu JA and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 22 June 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 10 March 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“I am not satisfied with decision because this will lead my life towards more danger. I can’t go back to my country at this moment because my life is not safe in my homeland in India. I just humbly request to respected court to help me to stay in Hong Kong till my problems solved in my country.”

4.  The applicant lodged a written submission in support of the application on 14 April 2020.  In the written submission, the applicant submitted that he did not know that his failure to file skeleton submissions would mean that there would not be an oral hearing.  He submitted that he should have been given legal and language assistance for his claim under BOR 2 risk.  He claimed that all acts of the authorities had been highly discriminatory and unfair to him. 

5.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters he she has raised.

7.  The bare assertion by the applicant that it is unsafe for him to return is not a valid ground for judicial review.  It is also not a valid ground of appeal.

8.  As for the grounds raised in the submissions, we have already given reasons for not fixing an oral hearing at [14] – [16] of our judgment. 

9.  We note that, hitherto, the applicant has not raised any complaint related to his claim under BOR2 risk.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the notice of motion dated 10 March 2020 is dismissed.

The applicant acting in person

CACV 282/2018

[2018] HKCA 916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2018

(ON APPEAL FROM HCAL 845/2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 22 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 29 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 29 October 2015 and 10 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 5 June 2009 as a visitor and was permitted to remain until 19 June 2009.  He did not leave, but overstayed until 30 August 2010.  He lodged a non-refoulement claim on 2 September 2010. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 29 October 2015 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 10 July 2017, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  A hearing was scheduled for 22 March 2017 but the applicant failed to appear at the hearing.  The applicant was requested to provide a satisfactory explanation for his absence from the scheduled hearing but he made no reply.  The Board considered both Decisions of the Director on paper and dismissed the appeal on 29 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [33] of the Board’s Decision, the Board held that they could not determine if the applicant was being truthful because of his absence from the hearing.  The Board could not find any substantial ground for believing that he would suffer any harm upon his return.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 6 November 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 6 November 2017, the applicant advanced various grounds for judicial review which are summarised below:

(1)  the decisions of the Director and the Board were unreasonable; and

(2)  the Director and the Board only considered web reports and some Indian authorities report but did not go into the events on which his claim is based.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [12] of the CALL-1 Form:

“10. These are very broad and vague assertions of the applicant without providing any particulars or specifics or elaborations as to how the Director or the Board had erred in their decisions or how they had failed to rely on the relevant COI in their consideration of his claim or which relevant COI that the applicant is referring to.

11. Nevertheless, having proceeded to consider 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.

12.  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

12.  In the Notice of Appeal dated 3 July 2018 the applicant said that he cannot go back because it is not safe for him to return.

13.  The applicant agreed by a letter of 16 July 2018 that the appeal could be heard by two judges.

14.  The applicant failed to comply with the direction made by this Court on 10 September 2018 requiring him to lodge skeleton submissions by 24 October 2018, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

15.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

16.  The hearing date on 21 November 2018 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

17.  The applicant has wholly failed to identify any error in the judgment below.  In the notice of appeal, he simply makes the bare assertion that it is not safe for him to return to India.  This is not a viable ground of appeal.

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.