Re Newar Dipak

CACV 210/2019

[2020] HKCA 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 210 OF 2019

(ON APPEAL FROM HCAL 75/2018)

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Before: Hon Yuen JA, Barma JA and Au JA in Court

Date of Judgment: 7 May 2020

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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 Campbell-Moffat J given on 24 April 2019 refusing leave to the applicant 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 5 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 18 February 2016 and 3 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India.  He entered Hong Kong on 22 February 2014.  He overstayed and was arrested by the police on 20 May 2014.  He lodged a non-refoulement claim on 22 May 2014. 

3.The applicant’s claim was based on threats from his relative arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 form.

4.By a Notice of Decision dated 18 February 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.By a Notice of Further Decision dated 3 August 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 14 September 2017, the Board dismissed the appeal on 5 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [49] of the Board’s Decision, the Board found that the applicant’s evidence was wholly unreliable.

The judge’s decision

7.The applicant filed a Form 86 on 15 January 2018 which contained no ground for seeking relief. 

8.In his affirmation in support of the leave application dated 15 January 2018, the applicant deposed that “[The Director’s decisions and the Board Decision are] not correct.  They have failed to consider the ground realities in India before reaching at their decision.”

9.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.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 [10] to [12] of the CALL-1 form:

“10. There were no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

12.    In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Grounds for appeal

11.In the Notice of Appeal dated 3 May 2019 the applicant advanced the following grounds of appeal:

(1)  hearing done by the Board was not fair;

(2)  the applicant still faces danger to his life in India.

12.The applicant failed to comply with the direction made by this court on 22 May 2019 requiring him to lodge skeleton submissions by 28 days before the hearing, 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 20 August 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 grounds of appeal put forward do not identify any error on the part of the judge.  As we have often stated, in an appeal to this court, it is necessary to identify errors in the decision below.  In any event, the applicant failed to provide any particulars of his complaints against the Director’s decisions and the Board Decision in the Notice of Appeal and in his affirmation dated 15 January 2018.  This ground is not viable and is bound to fail.

16.The bare assertion by the applicant that it is unsafe for him to return is not a ground for seeking judicial review or a ground for appeal at all.  This ground is equally without merit.

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

The applicant acting in person