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CACV 88/2018
[2018] HKCA 467
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 88OF 2018
(ON APPEAL FROM HCAL 704/2017)
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| RE: |
GURJANT SINGH |
Applicant |
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Before: Hon Lam VP and Barma JA in Court
Date of Judgment: 6 August 2018
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 16 March 2018 refusing leave to apply for judicial review. The applicant’s intended application for judicial review is against the decision of an adjudicator of the Non-Refoulement Claims Petition Office dated 15 September 2017 rejecting the applicant’s petition against the determination of the Director of Immigration dated 23 January 2017.
2. This appeal was originally listed for hearing on 24 July 2018. At the time when the hearing date was fixed, the court also gave direction for lodging skeleton submissions with an unless order that if such submissions were not lodged, the hearing date would be vacated and the appeal shall be processed on the papers based on materials already filed by the applicant.
3. Notwithstanding such unless order, the applicant did not lodge his skeleton submissions.
4. Non-compliance with such requirement, notwithstanding an unless order, is treated by the court as the abandonment of the right to an oral hearing, see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.
5. Accordingly, the hearing was vacated. We now give our decision on this appeal based on materials already lodged.
Background
6. The applicant is an Indian national. He entered Hong Kong on 24 November 2013 with permission to remain as a visitor until 8 December 2013. He overstayed and surrendered to the Immigration Department on 3 March 2014. He lodged his non-refoulement claim on the same date.
7. The applicant’s non-refoulement claim was based on the fear that, if he returned to India, he would be harmed, or even killed by his uncle, with whom he had a money dispute. It was the applicant’s case that he used to work as a labourer overseas and sent his salary to his uncle for safe-keeping. His uncle used his money to purchase two plots of land. After he returned to India, his uncle refused to return his money to him. The applicant claimed that his uncle tried to kill him so that he would not ask for the return of his money.
8. By a notice of decision dated 24 November 2014, the Director of Immigration rejected his claim. The director considered that the applicant only suffered injury once during the confrontations with his uncle and that the injury was not serious. The low intensity and in-frequency of past ill-treatment indicated a small future risk of harm upon his return to India. The director also considered that the availability of state protection and the viability of internal relocation would lower the perceived risk of harm. The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].
9. The applicant appealed to the Torture Claims Appeal Board. The board dismissed the appeal on 1 March 2016. The applicant did not make any application to the court for leave to judicial review this decision of the board.
10. By a letter dated 5 January 2017, the director invited the applicant to submit additional facts for assessment of his claim under the BOR 2 risk[4]. The applicant did not respond by the deadline, and the director proceeded with the assessment. By a notice of further decision dated 23 January 2017, the director decided against the applicant’s claim based on the BOR 2 risk.
11. The applicant petitioned to the adjudicator against the director’s further decision. Although the petition was made out of time, the adjudicator granted an extension of time for the applicant to lodge the petition. As no additional facts were provided by the applicant, the adjudicator did not see a need to hold an oral hearing. Having studied the case, including the previous decision of the board, the adjudicator dismissed the applicant’s petition on 15 September 2017.
The deputy judge’s decision
12. The applicant filed the form 86 on 3 October 2017 in respect of the adjudicator’s decision. While the form 86 contained no grounds for seeking relief, the applicant advanced the following grounds in the supporting affirmation dated 3 October 2017:
(a) The adjudicator failed to hold an oral hearing and to invite written submission and evidence from the applicant; and
(b) The high standards or fairness required the provision of legal representation for the appeal before the board; and
(c) The adjudicator failed to give adequate explanation for rejecting his petition concerning the BOR 2 claim.
13. The deputy judge held an oral hearing on 28 February 2018 and gave the following reasons in refusing leave to apply for judicial review at paragraphs 13 to 18 of the CALL-1 form dated 16 March 2018:
“ 13. I considered the applicant’s grounds set out in his affirmation. He seeks to rely on a submission that a lack of an oral hearing was a failure on the part of the adjudicator to adhere to a high standard of fairness. He suggests the fact he was...
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