RE SELLAIAH MURUGESAN

CACV 163/2019

[2020] HKCA 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 163 OF 2019

(ON APPEAL FROM HCAL 529/2018)

____________________

RE:

SELLAIAH MURUGESAN

Applicant

____________________

Before:  Hon Lam VP, Barma and Au JJA in Court

Date of Written Submissions:  6 October 2020

Date of Judgment:  20 November 2020

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 24 September 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 16 August 2019.

2.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

3.  In his Notice of Motion for leave to appeal to the CFA, the Applicant stated that his life would still be in danger if he were to return to India because there is still a threatening situation there.

4.  The Applicant lodged his written submissions on 6 October 2020.  In those submissions, the Applicant stated that in his appeal to this Court he had not made written submissions due to language difficulty, and that it was unfair that the Judge never heard him in person. 

5.  The Applicant also submitted that it was unfair and prejudicial that he was not provided with language assistance and legal representation in respect of the assessment of BOR 2 risk[1] by the Director of Immigration (“the Director”) after his non-refoulement claim was initially rejected on all other applicable grounds.  The Applicant stated that the decision of the Torture Claims Appeal Board (“the Board”) was not read to him via an interpreter.

6.  In our judgment, the Applicant has not raised any reasonably arguable ground of appeal on the merit of his claim or any discernible or arguable ground for disturbing our judgment. 

7.  It is well-established that upon a failure to comply with unless order to lodge skeleton submissions this Court can treat the failure as an abandonment of right to oral hearing: see Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; Re Manjit Kaur[2018] HKCA 247; Re Miha Md Limon[2018] HKCA 278; Re Ali Arshad[2018] HKCA 304; Re SK Sarfaraj[2018] HKCA 307; United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451.

8.  Adequate time was given to the Applicant under the unless order for him to lodge skeleton submissions.  He did not explain for his inability to lodge submissions in the appeal when he can do so in this Motion.   

9.  The arguments in his current submissions were not raised in the Court of First Instance or the substantive appeal in this Court. An application for leave to appeal to the CFA is not the right occasion for new arguments to be canvassed.

10.  Moreover, such arguments do not give rise to valid public law grounds for reversing the Board’s decision.  The Applicant’s arguments regarding lack of legal or language assistance are untenable.  As this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah[2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Lopchan Subash[2018] HKCA 37; Re Gurnishan Singh[2018] HKCA 704; Re Gurung Sagar[2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office[2019] HKCA 1403.

11.  As regards BOR 2 assessment, the record shows that the Applicant had lodged a 3-page submissions to the Director on 28 March 2017 setting out his claim on BOR 2 (which was based on the same underlying factual materials put forward for other heads of non-refoulement claims). Those matters had been properly considered by the Director in the letter of 30 March 2017 and the Board’s decision of 9 March 2018.

12.  In any event, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

13.  For these reasons, we refuse to grant leave to appeal to the CFA. The Applicant’s Notice of Motion is dismissed accordingly.

(M H Lam)	(Aarif Barma)	(Thomas Au)
Vice President	Justice of Appeal	Justice of Appeal

The applicant acting in person

CACV 163/2019

[2019] HKCA 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 163 OF 2019

(ON APPEAL FROM HCAL 529/2018)

____________________________

RE:

SELLAIAH MURUGESAN

Applicant

____________________________

Before: Hon Lam VP and Au JA in Court

Date of Judgment: 16 August 2019

________________________

J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 29 March 2019 refusing leave to the applicant to apply for judicial review. 

2.  Due to the non-compliance with an unless order in terms of lodging skeleton submissions, the hearing date for this appeal (originally listed for 15 July 2019) was vacated and this appeal is processed on paper based on the materials already lodged.

3.  By a letter dated 2 April 2019, the applicant gave consent that this appeal might be dealt with by a two-judge court.

4.  This is our judgment.

Background

5.  The applicant is a national of India.  He entered Hong Kong on 16 September 2012 with a permission to remain as a visitor for 14 days.  He did not depart upon the expiry of his permission to remain, and had overstayed since 1 October 2012.  He was arrested by the police on 13 October 2012.  He lodged a torture claim on 15 October 2012.  His claim was treated as a non-refoulement claim to be assessed on all applicable grounds upon the commencement of the unified screening mechanism in March 2014.

6.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or even killed by a person (abbreviated as “MK” in the decision below, who was said to be a minister of the Central Government of India) because the applicant refused to sell him the land inherited from the applicant’s father.  The background facts of this case were summarized by the judge in [2] – [9] of the Form CALL-1 ([2019] HKCFI 258).

7.  By two notices of decision dated 6 October 2015 and 30 March 2017, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds and determined the claim against the applicant.  The former covered the BOR 3 risk[1], the persecution risk[2] and the torture risk[3]; and the latter the BOR 2 risk[4]. 

8.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decisions.  An oral hearing was held on 6 December 2017, and the applicant elected to testify at the hearing.  Having heard the applicant, the Board find that the pain and suffering allegedly inflicted on him did not attain the minimum level of severity to constitute torture or cruel, inhuman or degrading treatment.  The Board also found that MK was not acting in official capacity or under the colour of state authority. The Board concluded state protection is available. The Board did not accept that the applicant would face a genuine and substantial risk of being subjected to ill-treatment if refouled.  By a decision given on 9 March 2018, the Board dismissed the applicant's appeal/petition.

The judge’s decision

9.  The applicant filed his Form 86 on 29 March 2018, seeking leave to apply for judicial review against the decisions of the Director and the Board.  Neither the Form 86 nor the supporting affirmation filed on the same date contained any grounds for seeking relief.  The applicant only exhibited the decisions of the Director and the Board as well as his Non-refoulement Claim Form in his affirmation in support.

10.  Upon the request of the applicant, an oral hearing was held on 17 January 2019. 

11.  After having summarized the background facts and giving due regards to the decisions of the Board and the Director, the judge refused to grant leave for the applicant to apply for judicial review.  The reasons in refusing leave were set out in [16] – [19] of the Form CALL-1 as follows:

“ 16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and the process before the Board where the evaluation of risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the Court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in those decisions having been clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.

17. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a finding accepted by the Board when it confirmed the Director’s decision, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18. In the premises and 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.

19. 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.”

The appeal

12.  On 2 April 2019, the applicant filed a notice of appeal.  In it, the applicant stated the followings:

“ I can’t go back to my country at this moment because my life is not save there. Please help me to [illegible] in Hong Kong so there I can save my life.” (sic)

13.  Notwithstanding that he was directed to do so, he did not lodge any written submissions in support of this appeal.

General principles

14.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.  

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

15.  In the present case, the Board rejected the applicant’s claim because it was not satisfied that he would face a genuine and substantial risk of being subjected to ill-treatment if refouled.  As the judge correctly pointed out in [16] of the Form CALL-1, the evaluation of the risk of harm is within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on the public law grounds.  After rigorous examination and anxious scrutiny of the materials available to him, the judge could not find any reasonably arguable basis to challenge the findings of the Board.

16.  There is no proper ground of appeal in the notice of appeal and the applicant did not provide any basis for reversing the decision of the judge. 

17.  The judge has applied the relevant legal principles correctly. We agree that leave to apply for judicial review should be refused.

18.  For these reasons, we dismiss the appeal.

(M H Lam)	(Thomas Au)
Vice President	Justice of Appeal

The applicant acting in person