Re Lakhvir Singh

CACV 135/2022

[2022] HKCA 1010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2022

(ON APPEAL FROM HCAL 1367 OF 2018)

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Before:   Hon Chu JA and B Chu J in Court

Date of Judgment:  20 July 2022

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J U D G M E N T

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Hon B Chu J (giving judgment of the court):

1.This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 1 April 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 916).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 6 July 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 24 March 2015 and 2 December 2016 (collectively referred as “the Director’s Decisions”) rejecting the applicant’s non-refoulement claim.

3.The appeal was listed to be heard on 6 July 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 8 June 2022 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning were communicated to the applicant by the Notice of Hearing dated 10 May 2022.

4.The requirement for lodging skeleton argument in an appeal is set out in 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 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.

5.As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.

Background

6.The applicant is a national of India.  On 1 January 2015, the applicant arrived in Hong Kong and was refused landing.  On the same day, he lodged a non-refoulement claim on the basis that he would be harmed or killed by his paternal uncle and his sons if he was to return to India owing to a land dispute.   

7.By a Notice of Decision dated 24 March 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all the then applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

8.By a Notice of Further Decision dated 2 December 2016 (“the Director’s 2^nd Decision”), the Director assessed the applicant’s non-refoulement claim on the basis of BOR2 risk[4] and decided against it. 

9.The applicant then appealed against the Director’s Decisions to the Board.  The applicant attended an oral hearing before the Board on 30 August 2017 in person and gave evidence.  On 6 July 2018, the Board dismissed his appeal. The Board found that the dispute between the applicant and his uncle was a private matter in nature.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds. The Board also found that state protection and internal relocation would be available to the applicant.  Accordingly, the Board dismissed his appeal and confirmed the Director’s Decisions. 

The Leave Decision

10.On 12 July 2018, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision and relying on the following grounds:

(1)  Procedural unfairness in that the Board unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal was unreasonable and irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board relied significantly on source of news that were not officially recognized or were simply hearsay or outdated considering the dramatic changes resulted in making groundless speculations that it would be safe for the Applicant to return to his home country; and

(6)  That the Applicant was given the hearing bundle only six days before the appeal hearing with the majority of the documents in English thereby giving him insufficient time to prepare for the hearing especially due to his limited skills in English that led to an unfair hearing for his appeal before the Board.  

11.On 3 March 2022, the applicant appeared in person for the oral hearing before the Deputy Judge and a Punjabi interpreter was also present to provide language assistance. 

12.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [13] to [19] of the Form CALL-1:

“13. These are however all just broad and vague assertions of the Applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner or that its decision was unreasonable or irrational in the public law sense, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or which COI were unofficially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or irrationality 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 of them reasonably arguable for his intended challenge.

14. 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: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby giving him insufficient time to prepare for his appeal.

16. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable either.

17. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions 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, 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 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.

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

13.On 13 April 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“The applicant will face hardship life if he return back to his home country. The Torture Claims Appeal Board and the Director of Immigration has significantly relied on source of news which is not officially recognized or it is simply hearsay. They have relied on some cases which are which are outdated considering dramatic changes. The lack of credible sources of information has resulted them in making groundless speculations.” (sic)

14.As noted above, contrary to the directions given by this Court on 10 May 2022, the applicant did not lodge any written submissions. 

Discussion

15.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

17.Nowhere in his Notice of Appeal did the applicant identify any error made by the Deputy Judge in the Leave Decision.  His complaints are solely directed at the Board and the Director.  There is simply no proper ground of appeal and the appeal must be dismissed on this basis alone. 

18.In any event, the applicant’s allegations are general and vague without any specific particulars in support.  They are not viable grounds of appeal.  More importantly, it is well-established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision. 

19.For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person