CACV 22/2023, [2023] HKCA 617
On Appeal From [2023] HKCFI 200
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 22 OF 2023
(ON APPEAL FROM HCAL 637 OF 2019)
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Before: Hon G Lam JA and Lisa Wong J on paper
Date of Judgment: 12 May 2023
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JUDGMENT
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal by the abovenamed applicant against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 19 January 2023 (“Judge’s Decision”), refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 28 February 2019 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 26 February 2018 (“Director’s Decision”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of India now aged about 38, is a fear of being harmed or even killed by his 2 paternal uncles (“Uncles”) over a land dispute.
3. The circumstances giving rise to such alleged fear have been set out in detail in paragraph 7 of the Director’s Decision and paragraph 16 of the Board’s Decision and in gist in [2] to [5] of the Judge’s Decision embodied in the Form CALL-1 dated 26 January 2023, [2023] HKCFI 200 (“Form CALL-1”).
4. Briefly:
(1) After leaving school, the applicant farmed on the land inherited by his late father from his grandfather. Such land is right next to Uncles’ land.
(2) In 2013, Uncles demanded the applicant to leave his land to them. The applicant refused.
(3) Uncles and 2 men sent by them twice assaulted the applicant. On the second occasion, the 2 men sent by Uncles threatened to kill the applicant next time if he still refused to transfer his land to Uncles.
(4) Fearing for his life, the applicant first took refuge with a friend in Jammu in early 2014. Then, in 2015, the applicant moved to Bhutan.
(5) The friend in Jammu advised the applicant to flee to Hong Kong and borrowed money to finance the applicant’s journey to Hong Kong.
(6) The applicant did not report the assaults to the police as Uncles were affiliated to the ruling Congress Party.
(7) He left behind his mother, his wife and their 3 children who continued to live in the same house in the same village as Uncles.
Overstaying in Hong Kong and lodgment of NRF Claim
5. The applicant arrived in Hong Kong as a visitor on 9 July 2015. His visa expired on 25 July 2015. Thereafter, he overstayed. On 28 July 2015, the applicant surrendered to the Immigration Department.
6. The applicant raised the NRF Claim by written representation dated 10 November 2015. He later completed and lodged a non-refoulement claim form dated 9 February 2018 (“NCF”), which the applicant amended/supplemented on 21 February 2018.
Director’s Decision
7. In addition to the NCF, in processing the NRF Claim, the Director’s representative(s) conducted a screening interview with the applicant on 23 February 2018. The applicant then had legal advice and representation from the Duty Lawyer Service.
8. The Director found the NRF Claim unsubstantiated under all applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].
Appeal to Board and Board’s Decision
9. The applicant appealed against the Director’s Decision to the Board.
10. The Board conducted a rehearing of the NRF Claim on 22 November 2018, at which the applicant testified before, and answered questions by, the Board through an Indian Punjabi/English interpreter.
11. The Board dismissed the appeal on all 4 grounds for non-refoulement protection for the following reasons.
12. The Board did not see any real risk of harm to the applicant in the event of refoulement. It found the central aspects of the NRF Claim not as the applicant had claimed. There were multiple anomalies in the applicant’s account(s). The applicant was unable to satisfactorily address the Board’s concerns when they were put to him at the hearing.
Application for leave for judicial review and Judge’s Decision
13. By a Notice of Application for Leave to Apply for Judicial Review (“Form86”) issued under HCAL 637/2019 on 6 March 2019 and the supporting affirmation filed on the same day, the applicant sought leave to apply for judicial review of the Board’s Decision, without identifying any grounds for the proposed judicial review.
14. The applicant did not ask for an oral hearing. After considering the papers before him, the Judge refused to grant leave to apply for judicial review of the Board’s Decision for the reasons set out at [11] – [14] of the Form CALL-1:
“11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the 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 their decisions being 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: ReLakhwinder Singh[2018] HKCA 246; ReDaljit Singh[2018] HKCA 328; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.
12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 18 – 41 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
13. Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
14. Having considered 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.”
Appeal to Court of Appeal
15. By the notice of appeal filed herein on 31 January 2023, the applicant appealed against the refusal of leave for judicial review, without stating any grounds of appeal.
16. In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals by letter dated 22 February 2023, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.
17. The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1. The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants. Non-compliance 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 a 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 is treated as the abandonment of the right to an oral hearing.
18. The hearing date on 18 April 2023 was therefore vacated, leaving us to deal with the appeal on paper on the basis of the material already filed with the court.
Appeal has no merits
19. In view of the sloppy manner in which the applicant has conducted this appeal (and the application for leave for judicial review below), we can dispose of the matter shortly.
20. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere if and only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(2) & (4)].
21. In this case, the applicant has not set out any grounds of appeal at all. And it is not for this court to find one for him. Anyway, we cannot discern any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. As stated in [13] above, the applicant did not in the Form 86 and the supporting affirmation reveal any grounds for judicial review. The proposed application for judicial review was thus doomed. Leave was rightly refused.
22. In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision. We are satisfied that they are both in order.
Disposition
23. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Godfrey Lam) | (Lisa Wong) |
| Justice of Appeal | Judge of the Court
of First Instance |
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.