RE DHALIWAL RUPINDERJEET SINGH

CACV 594/2018

[2019] HKCA 1158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 594 OF 2018

(ON APPEAL FROM HCAL 968/2017)

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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 27 June 2019, this court (Barma and Au JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 11 December 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 5 July 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The judgment has made stated is ‘no merit in the appeal’ it is not true.

On the strength of the grounds not made by my lawyer about his poor performance and mistake was my lawyer that due time he not submitted skeleton to the court of appeal.

The [judge] not consider my situation, that time I was in prison.”

4.  The applicant lodged a written submission in support of the application on 18 July 2019.  In the written submission, the applicant submitted that the lawyer assigned to him by the Duty Lawyer Scheme did not provide sufficient representation.  As a result, there was unfairness in the procedure.  It was not possible for him to give proper grounds of appeal in the appeal before this court because he was detained by the authorities.  He asked the court to consider the fact that it is not safe for him to return.

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 Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission 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 has raised in the Notice of Motion and written submission.  

7.  The applicant failed to identify any ground of judicial review with sufficient particulars before the judge.  In the appeal to this court, he only asked this court to consider the danger he faced.  The applicant has failed to identify any public law error on the part of the Board or the Director.  As we have repeatedly held in previous cases, an application for judicial review is not a further avenue of appeal from the Board’s Decision. The applicant must identify some public law error and it is not sufficient simply to ask the court to re-evaluate his non-refoulement claim.

8.  This court has also repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas[2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  The applicant’s contention that he was unable to identify grounds of appeal or lodge skeleton submission is not a ground for seeking leave to appeal to the Court of Final Appeal.  We further note that the applicant has failed to identify the deficiency in the legal service he received or any real prejudice from the lack of legal representation.

9.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.  

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 5 July 2019 is dismissed.

CACV 594/2018

[2019] HKCA 714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 594 OF 2018

(ON APPEAL FROM HCAL 968/2017)

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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 Campbell-Moffat J given on 11 December 2018 refusing the applicant 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 5 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 12 July 2016 and 7 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 1 October 2015 and was permitted to remain until 15 October 2015.  He overstayed and was arrested by the police on 18 January 2016.  He lodged a non-refoulement claim on 20 January 2016. 

3.  The applicant’s claim was based on threats from an allegedly powerful man who sought to take over the land of the applicant’s family.  The details of the applicant’s claim have been summarised by the judge at [4] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 12 July 2016 (“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 7 June 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.  After a hearing on 28 November 2017, the Board dismissed the appeal on 5 December 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [12] of the Board’s Decision, the Board held that the applicant is not at risk of the proscribed harms upon his return.  The Board was also satisfied at [16] that state protection would be available for the applicant and at [21] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 28 November 2017 which contained no ground for seeking relief.

9.  In the affirmation in support of the leave application filed on 28 November 2017, the applicant said that the Board’s Decision was unfair and unreasonable.  He did not give any particulars.

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 [14] to [15] of the CALL-1 Form:

“14. Despite the fact that the Applicant did not submit any explicit grounds of review, I have considered the papers and grounds, such as they are, carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

15.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Grounds for appeal

12.  In the Notice of Appeal filed on 20 December 2018 the applicant asked for a reconsideration of his judicial review application.  He submitted that the danger to him is getting more serious every day.

13.  The applicant agreed by a letter of 20 December 2018 that the appeal could be heard by two judges.

14.  The applicant failed to comply with the direction made by this court on 22 January 2019 requiring him to lodge skeleton submissions not less than 28 days before the hearing, 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.  Compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  Skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  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 17 April 2019 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 failed to identify any error on the part of the judge, who held that there was no public law error in the decisions of the Director and the Board. The bare assertion by the applicant that it is unsafe for him to return is not, by itself, a ground for seeking leave for judicial review or a ground of appeal.

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