Re Shrestha Santosh Kumar
Read the full judgment text of CACV 194/2018 on BabelCite. This Court of Appeal judgment was delivered on 6 September 2018 before Lam VP, Yuen JA, Kwan JA.
Administrative law – judicial review – non-refoulement claim – appeal from refusal of leave – application of enhanced Wednesbury scrutiny – role of Court of Appeal – skeleton submissions – unless order – abandonment of oral hearing – Nepal – political violence – Nepali Congress supporter – Maoist threat – whether the judge erred in refusing leave to apply for judicial review where applicant advanced no substantive grounds in Form 86 or supporting affirmation – whether failure to lodge skeleton submissions despite unless order constitutes abandonment of right to oral hearing – whether the Board misdirected itself on state acquiescence, COI assessment, and standard of proof – whether applicant could rely on materials not produced before the Board – whether high standard of fairness confers absolute right to free legal representation at all stages – general propositions that Court in judicial review is not further avenue of appeal, that primary decision-makers are the Director and Board, and that Court will not intervene absent errors of law, procedural unfairness or irrationality – appeal against refusal of leave is not occasion to regurgitate arguments rejected below – Court of Appeal only reverses if judge made errors of law, failed to take account of relevant matters, or was plainly wrong – fresh evidence subject to Ladd v Marshall requirements – new fact-and-evidence sensitive arguments not raised below will not generally be entertained – allowing reargument would flout Order 53 rule 4(1) stringent time limits – applicant, a Nepali national who overstayed as transit visitor, alleged Maoist persecution as Nepali Congress supporter and student union president – Director rejected BOR 3, Refugee Convention article 33, Cap 115 Part VIIC and BOR 2 risks – Board found no minimum level of severity, no official-capacity conduct by kidnappers, and available state protection – judge's refusal of leave upheld on ground application not reasonably arguable under Peter Po Fun Chan v Winnie CW Cheung – applicant's complaint that judge gave inadequate reasons plainly unmeritorious in light of lack of substantive grounds – complaint regarding state acquiescence wholly misconceived as not raised below – Exhibit A arguments were generic assertions seen in other cases, not addressing applicant's specific facts – belated additional COI materials not produced before Board and in any event outdated – appeal dismissed.
Legal issues: Effect of failure to lodge skeleton submissions under unless order · Standard of review of judge's refusal of leave in non-refoulement judicial review · Whether the Board erred in its assessment of the non-refoulement claim
Outcome: Appeal dismissed; refusal of leave to apply for judicial review upheld.
Cited by 10 cases · Cites 31 cases
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CACV 194/2018 [2018] HKCA 583 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 194 OF 2018 (ON APPEAL FROM HCAL 434/2017) ________________________
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________________ JUDGMENT ________________ Hon Lam VP (giving the Judgment of the Court): Introduction 1.This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 24 May 2018 refusing leave to apply for judicial review. 2.On 4 July 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions. It was directed that, in the event of failure to lodge skeleton submissions, the applicant would be deemed to have waived his right for an oral hearing and elected to have this appeal to be disposed of on paper. 3.On 6 July 2018, the hearing of this appeal was fixed for 4 September 2018. When the hearing date was fixed, the court also gave directions for lodging skeleton submission with an unless order that if no skeleton submission was to be lodged by 7 August 2018, the hearing date would be vacated and the appeal would be proceeded on papers based on materials already lodged. 4.Notwithstanding the said directions and unless order, the applicant failed to submit any skeleton submissions. 5.Non-compliance with the court’s direction to lodge skeleton submissions, notwithstanding an unless order, is regarded as the abandonment of the right to an oral hearing: see Re Majit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; Re SK Sarfaraj [2018] HKCA 307; and Re Gurjant Singh [2018] HKCA 467. 6.Accordingly, the hearing date was vacated. The applicant was further informed of the vacation of the hearing date by a letter dated 10 August 2018. 7.We now give our decision on this appeal based on materials already lodged. Background 8.The applicant is a national of Nepal. He entered Hong Kong on 14 November 2013 with permission to remain as a transit visitor until 21 November 2013. He did not depart upon the expiry of his permission to remain, and overstayed illegally. He was arrested by the police on 20 December 2013, and he lodged his claim for non-refoulement on 22 December 2013. 9.His non-refoulement claim was based on his fear that, if he returned to Nepal, he would be harmed or even killed by members of the Maoist party. According to the applicant, he was a supporter of another political party Nepali Congress (“NC”) and was the President of the party’s associated student union. He claimed to have been kidnapped and attacked by members of Maoist group who forced him to leave NC and to join them. He had also allegedly engaged in a fight with Maoist supporters in election campaign. 10.By a notice of decision dated 18 May 2015, the Director of Immigration rejected the applicant’s claim. The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. 11.By a notice of further decision dated 28 October 2016, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and determined the risk against him. 12.The applicant appealed to the Torture Claims Appeal Board. After an oral hearing held on 16 November 2016, the board found that the applicant failed to establish his injuries attained a minimum level of severity. The applicant was also unable to show that his kidnapper acted in an official capacity. As there was no concrete evidence showing that the Maoist group had looked for him, the board found that the applicant failed to establish in evidence that he would be subjected to physical harm if he returned to Nepal. Having considered the relevant country of origin information (“COI”), the board shared the director’s view that state protection was available to the applicant. The board dismissed the appeal on 6 July 2017. The judge’s decision 13.The applicant filed his form 86 on 21 July 2017. Both the form 86 and the applicant’s supporting affirmation dated 21 July 2017 did not contain any grounds for seeking reliefs. In the supporting affirmation the applicant only exhibited to it a bundle of documents, including his recognizance form, the decisions of the director and the board, some news articles, correspondence with the Immigration Department, and the hearing bundle for the appeal before the board. 14.After oral hearings on 14 November 2017 and 10 January 2018, the judge dismissed the application for leave to judicial review on 24 May 2018. The judge’s reasons for refusing leave to apply for judicial review were set out in paragraphs 14, and 16-18 of the CALL-1 form:
The appeal 15.The applicant filed his notice of appeal on 30 May 2018. In his notice of appeal, the applicant referred to his supporting affirmation for the ground of appeal. The applicant said in his affirmation dated 30 May 2018 that:
16.In exhibit A to the supporting affirmation, the applicant further advanced the following grounds of seeking reliefs in the intended application for judicial review:
Discussion 17.Before we addressed the grounds of appeal, it is necessary to highlight the following general propositions:
18.In the present case, notwithstanding the absence of proper ground being put forward by the applicant, the judge found no reasonably arguable basis to challenge the findings of the Board after rigorous scrutiny. 19.In the appeal, the applicant did not advance any effective arguments against the analysis by the judge. The suggestion that the judge did not give adequate reason was plainly unmeritorious. The judge’s observations should be read in light of the lack of substantive ground advanced by the applicant in his application for leave to apply for judicial review. The other ground raised by the applicant is wholly misconceived as the judge did not rule on state acquiescence in light of lack of argument in that regard raised by the applicant before her. 20.All his arguments in Exhibit A were directed towards the decision of the Board without any attempts to explain why such arguments were not advanced before the judge. Exhibit A is a document which this Court have seen in other non-refoulement cases, which did not address specifically the facts and circumstances of the applicant (or any other claimants). 21.In substance, the applicant attempted to argue the matter afresh in the appeal by raising some general assertions. As stated above, this is not a course open to an applicant on appeal. 22.Moreover, his belated arguments were general assertions against the Board without any cogent and specific evidential basis supporting the case of the applicant. In our view, none of the grounds advanced in the applicant’s supporting affirmation has any merit. 23.It is clear from the board’s decision that what the board had in mind was the threshold that the applicant needs to meet in order to establish substantial grounds for believing that he would face a real risk of being subjected to ill-treatment upon his return to Nepal, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174. 24.As regards the complaint of insufficient inquiry of COI materials, the applicant did not put forward the COI materials he now alluded to[5] (but without producing the same) before the board. In any event, those materials are outdated and cannot be admitted as evidence in this appeal. 25.The high standard of fairness does not mean that an applicant has an absolute right to free legal representation at all stages of the proceedings, see: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 176. 26.Determination of merits of a non-refoulement claim is primarily a matter for the Director and the board, not for the court. The applicant failed to raise any effective basis for challenging the decisions of the Director and the Board in his application for judicial review. We agree with the judge that leave should not be granted to the applicant to apply for judicial review. 27.For these reasons, we do not see any prospect of success in the intended application for judicial review, and we dismiss the appeal accordingly.
The applicant acting in person [1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights. [2] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees. [3] This refers to the risk defined in part VIIC of the Immigration Ordinance (Cap 115). [4] This refers to the risk of violation of the right to life under article 2 of the Hong Kong Bill of Rights. [5] USHR 2010; USRF 2010; Report on the ICJ Mission to Nepal, Autumn 2011 |
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