RE TOOR INDERJEET SINGH

 CACV 109/2019

[2020] HKCA 203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 109 OF 2019

(ON APPEAL FROM HCAL 1110/2018)

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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 1 August 2019, this court (Kwan VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the judge”) on 27 February 2019 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 decision 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 12 August 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 be.

The Court of First Instance the honourable judge not consider my situation, that time I was detain in Castle Peak Bay Immigration Centre.  I got married in Hong Kong.  I don’t want to go back India and leave my wife alone here.  Please reconsider my case.”

4.  The applicant lodged a written submission in support of the application on 23 August 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He submitted that he did not have adequate legal representation and this should have been considered.  He also submitted that this court has failed to consider the risks he would face upon his return.

5.  On 31 December 2019, the applicant lodged a supplemental written submission without leave.  As stated in the order by the Registrar of Civil Appeals dated 14 August 2019, any further written submission lodged without leave would not be considered.  In any event, those submissions consist of general statements of law and citations from well known authorities with no attempt to relate them to the facts of this case.  They thus do not assist the applicant. 

6.  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.

7.  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 has raised.  

8.  We have already dealt with the bare assertion by the applicant that it is unsafe for him to return at [15] of our judgment.

9.  As for the lack of legal representation, we have repeatedly held that a non-refoulement claimant is not automatically entitled to legal representation at all stages of the proceedings.  In any event, the applicant failed to show any prejudice from the lack of legal representation.

10.  Lastly, the applicant’s marriage with a Hong Kong citizen is not itself a ground for judicial review or a ground of appeal.

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

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

13.  For these reasons, the Notice of Motion dated 12 August 2019 is dismissed.

CACV 109/2019

[2019] HKCA 830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 109 OF 2019

(ON APPEAL FROM HCAL 1110/2018)

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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 KW Lung given on 27 February 2019 refusing the applicantleave 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 14 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 31 January 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 7 January 2015 and was permitted to remain until 21 January 2015.  He overstayed, lodged a non-refoulement claim on 9 November 2017 and surrendered to the Immigration Department on 4 December 2017. 

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 [3] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 31 January 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 May 2018, the Board dismissed the appeal on 14 May 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [28] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [33] that state protection would be available for the applicant and at [55] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 15 June 2018 which contained the following grounds for judicial review:

(1)     the Board unlawfully fettered its discretion by refusing the appeal on the grounds that they did not satisfy the requirement;

(2)     the Board acted in a procedurally unfair manner in the appeal;

(3)     the Board’s Decision was unreasonable or irrational in the public law sense, or is a result of procedural errors or unfairness; and

(4)     the Board failed to meet the greater care and duty owed to a self-represented claimant.

8.  In the affirmation in support of the leave application filed on 15 June 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)     the hearing bundle for the hearing before the Board was not provided earlier or with interpretation, so that he was confused as to what was happening;

(2)     the late provision of hearing bundle and the lack of interpretation led to the wrongful conclusion by the Board that the applicant was incredible; and

(3)     the Board had significantly relied on sources of news which were not officially recognized or simply hearsay.

9.  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 [12] to [16] of the CALL-1 Form:

“The Board’s Decision

12. The applicant had appeared before me. He confirmed that before the appeal hearing, he had an interpreter who had explained the Hearing Bundle to him. He had no problem at the appeal hearing. He had no complaint against the Immigration officer or the Adjudicator of the Board. He considered that he had had a fair hearing at the appeal.

13. Grounds (1) and (2) therefore fail.

14. As to ground (3), the Director and the Adjudicator were entitled to consider such information or evidence. They had also considered the evidence adduced by the applicant. The applicant is unable to identify the problem with such information himself. This ground fails.

15. I find that the applicant is unable to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

16. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

10.  In the Notice of Appeal dated 6 March 2019 the applicant advanced the following grounds of appeal:

“Please review and reconsider leave application for judicial review. It is my humble request to the Decision Making Authority that threatened by growing crisis from Congress Party in my country. I already mentioned in my story. I am scared from Congress Party. This problem haven’t solved yet because the same Congress Party is still working in Punjabi and they are controlling the rules and regulations.”

11.  The applicant agreed by a letter of 6 March 2019 that the appeal could be heard by two judges.

12.  The applicant failed to comply with the direction made by this court on 26 March 2019 requiring him to lodge skeleton submissions by not less than 28 days before the hearing of the appeal (subsequently fixed for 10 June 2019), despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  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.

14.  The hearing date on 10 June 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

15.  The only ground of appeal set out in the Notice of Appeal consists of an assertion as to the alleged danger upon the applicant’s return to India.  It does not identify any error on the part of the judge and is therefore not a viable ground of appeal.  No other grounds of appeal have been suggested by the applicant.

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