RE RAJAN

CACV 131/2020

[2021] HKCA 189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 131 OF 2020

(ON APPEAL FROM HCAL NO. 291 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 12 November 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 May 2020 refusing him leave to apply for judicial review.     

2.  On 7 January 2021, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He had also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The facts of this case have been set out in our judgment. We will not repeat them here.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may on such terms as it considers appropriate extend the time for making the application.

6.  The applicant’s notice of motion was late by four weeks.  In his affirmation, the applicant explained his delay on the basis that he did not know the deadline and the court procedure and is handicapped in terms of language proficiency.  We do not find the explanatory satisfactory.  The delay is not insubstantial.  The applicant, however, has not elaborated on what efforts he had made to find out the time limit and procedure for appeal.

7.  We next turn to consider the merits of the intended appeal.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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.

8.  The applicant stated the following grounds of appeal in the notice of motion:

(1)  There is some error in law.

(2)  The decision maker just relied on COI information and facts that favour the rejection of his claim.  Actual life situation was different from that stated in the COI.

(3)  The officer and court preferred to ignore the overwhelming evidence of violence and took a biased and formulaic approach. It is unlikely that they had fairly assessed the danger to his life. 

9.  In his written submission, the applicant advanced the following arguments:

(1)  His case was not determined fairly. Without knowing how the case was determined it is not easy for him to appeal against it.  Non-refoulement claimants like him have limited resources.  There should be a proper and fair mechanism that allows unrepresented litigants to understand more about their case.

(2)  If a litigant has not been informed fully of his right and given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use when it was not even granted in the first place.

(3)  He was never provided with proper legal and language assistance.  The determination of the Board was not read to him in his language.  This is procedurally unfair and should be taken into account.

(4)  The discriminatory act of the authorities towards non-refoulement claimants that aims only at a quick disposal of their claims is unacceptable and is detrimental to the spirit of the judicial system.

10.  The grounds and arguments put forward by the applicant in the notice of motion and written submission do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, they do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, the applicant had not provided any ground for seeking relief in his application for leave to bring judicial review.  His present complaints about the use of COI and the lack of legal and language assistance were never raised in the application for leave to apply for judicial review before the Judge or in the appeal to this Court.  It is not open to the applicant to put forward these new grounds in this application for leave to appeal to the Court of Final Appeal.  In any event, they are general assertions or arguments unsupported by particulars.  The intended grounds of appeal in the notice of motion and the arguments in the written submission have no merits.         

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

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal to the Court of Final Appeal has no prospect of success. 

13.  There is in the circumstances no good cause to extend the time to apply for leave to appeal to the Court of Final Appeal.  Accordingly, we dismiss the notice of motion.  

The applicant, unrepresented, acted in person.

CACV 131/2020

[2020] HKCA 903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 131 OF 2020

(ON APPEAL FROM HCAL NO. 291 of 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 13 May 2020 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 14 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 9 September 2016 and 8 August 2017 rejecting his non-refoulement claim.    

2.  The applicant’s appeal was scheduled to be heard on 9 November 2020.  The applicant was directed to lodge his written skeleton argument by 12 October 2020 and further warned that if he failed to do so, he shall be deemed to have waived his right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 20 July 2020 and the Notice of Hearing dated 7 September 2020. 

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 materials 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 an 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 an Indian national.  He last arrived into Hong Kong on 11 February 2006 and was given permission to remain as a visitor until 25 February 2006, which was subsequently extended to 22 March 2006.  He overstayed.  On 19 May 2007, he was arrested by the police.  He later made a torture claim which was processed as a non-refoulement claim upon the commencement of the Unified Screening Mechanism on 3 March 2014. 

5.  The basis of the applicant’s claim is his fear of being harmed or killed by a person named Johnny due to a dispute over the shop of the applicant’s father.  The applicant’s case was set out in detail in the Director’s first decision and the Board’s decision, and summarised by the Judge in [1] to [5] of the Form CALL-1 dated 13 May 2020 ([2020] HKCFI 281).  In gist, the applicant stated that Johnny was wealthy and connected to the Aakali Dal Party, the ruling party of Punjab.  Johnny owned five vacant shops adjacent to the confectionary shop of the applicant’s father.  Johnny wanted to buy his father’s shop but the applicant, who ran the shop, refused.  On day in April 2005, Johnny approached the applicant reiterating his demand to buy the shop. They had an argument which developed into a scuffle.  The applicant hit Johnny with a water pot and caused Johnny to be severely injured and hospitalised. Fearing retaliation by Johnny and his people, the applicant fled to Delhi and stayed in a temple.  While he was in Delhi, he learnt that his father had been threatened by Johnny’s associates.  Also, some men looked for the applicant by showing his photo to people in the temple.  Fearing for his personal safety, the applicant left India.  He travelled between Shenzhen and Hong Kong until February 2006 when he ran out of money and was stranded in Hong Kong.   

6.  By two decisions dated 9 September 2016 and 8 August 2017, the Director rejected the applicant’s non-refoulement claim.  The first decision covered to the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds, and the second decision concerned the BOR 2 risk[4] ground.

7.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 10 November 2017, during which the applicant had answered questions put by the Board.  By its decision dated 14 December 2017, the Board dismissed the appeal.  In short, the Board accepted that the applicant refused Johnny’s demand to buy his father’s shop, the incident in April 2005, the applicant’s flee to Delhi and his father being threatened by Johnny.  The Board, however, did not accept as credible the applicant’s case that Johnny sent people to look for him in Delhi and that his father was further threatened by Johnny in 2015.  The Board found on the evidence that the dispute with Johnny was a private and localised one, and with internal relocation alternatives reasonably available to the applicant, the risk of harm was removed or mitigated.  The Board concluded that, on the facts and the applicable law, the applicant had failed to make out a case under any of the applicable grounds.          

8.  The applicant filed his Form 86 together with a supporting affirmation on 23 February 2018 to seek leave to apply for judicial review against the decision of the Board.  Neither the Form 86 nor the supporting affirmation set out any ground for seeking relief.        

9.  By his decision of 13 May 2020, the Judge refused to give leave to apply for judicial review.  The Judge considered that as the applicant had not pointed to any error of law or procedure in the Board’s decision or in the appeal process, there was no reasonably arguable basis to challenge the Board’s decision.  The Judge further observed that both the Director and the Board had pointed out that the risk of harm to the applicant is a localised one and that it is not unreasonable or unsafe for him to relocate to other parts of India, there is no justification to afford him with non-refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526.  The Judge accordingly concluded that the applicant’s intended judicial review has no prospect of success.

10.  The applicant filed a notice of appeal filed on 25 May 2020 to appeal the Judge’s decision.  Other than stating that it was not safe to return to his home country and that more time was needed to get documents from India, the notice of appeal did not set out any specific ground of appeal.  On 6 July 2020, the applicant provided a supplementary notice of appeal which contained the following grounds of appeal:

“(1)  Failing to give full proper grounds for refusing appeal by the Torture Claim Appeal Board.

(2)  Failing to inform [applicant] to attend the leave application for judicial review thereby causing the unfavourable judgement in the leave application”.

11.  In respect of the first ground of appeal, it is unclear whether the complaint is directed at the Board or the Judge.  In either case, the complaint is unjustified.  It is because both the Board and the Judge had given full reasons for their decisions. 

12.  As for the second ground of appeal, the Judge did not hold any oral hearing for the applicant’s application.  Under Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A, the Court of First Instance may determine the application for leave without a hearing, unless a hearing is requested in the notice of application.  As the applicant did not request an oral hearing in his Form 86, the Judge was not obliged to conduct an oral hearing.  Further, given that the applicant did not provide any ground for seeking relief in the Form 86 and the supporting affirmation, there was no basis on which leave to apply for judicial review could have been granted, and it would be futile to hold an oral hearing. 

13.  For the above reasons, the appeal has no merits.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.