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Re Maninder Singh

Judgment Cited authorities 18 Cited in Precedent Map Related
Vincent
Judgment Date31 October 2018
Neutral Citation[2018] HKCA 733
Judgement NumberCACV287/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV287/2018 RE MANINDER SINGH

CACV 287/2018

[2018] HKCA 733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2018

(ON APPEAL FROM HCAL No. 168 OF 2018)

__________________________

RE: MANINDER SINGH Applicant

__________________________

Before: Hon Yeung Ag CJHC, Hon Poon and Pang JJA in Court
Date of Judgment: 31 October 2018

_____________________

JUDGMENT

_____________________

Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1. This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 22 June 2018 refusing leave to apply for judicial review. The applicant’s intended application for judicial review is against the decisions of the Director of Immigration dated 3 August 2017 and the Torture Claims Appeal Board dated 17 January 2018 respectively.

2. On 10 August 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions. He also directed that if such submissions were not lodged within the prescribed time (ie not less than 28 days before the hearing of the appeal), the applicant would be deemed to have waived his right to have an oral hearing and elected to have this appeal disposed of on paper. The requirement of lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1. The compliance with such requirement on the part of the applicant is important for the proper and effective functioning of our appeal process and this court has been taking a firm stance against non-compliance with such requirement: see Re Manjit Kaur [2018] HKCA 247, para 10; Re Miha Md Limon [2018] HKCA 278, para 12; Re Ali Arshad [2018] HKCA 304, para 10; and Re Sk Sarfaraj [2018] HKCA 307, para 10.

3. On 27 August 2018, the hearing of this appeal was fixed for 12 October 2018. When the hearing date was fixed, the applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

4. Despite the directions and reminder, the applicant did not lodge any skeleton submissions. Accordingly, the hearing date was vacated, and we now deal with this appeal on the basis of the material before us.

Background

5. The applicant is an Indian National. On 22 August 2013, the applicant sought entry to Hong Kong from Delhi on strength of his passport at the airport and was refused permission to land. While pending his removal to Delhi, the applicant lodged his non-refoulement claim on 27 August 2013. His claim was based on his fear of being harmed, or even killed, by Mr Bittu in India who was the supporter of a major political party Shiromani Akali Dal (“SAD”), as the applicant was the supporter of Congress Party and refused to submit to Mr Bittu’s request to join SAD. The details of the applicant’s claim have been summarised by the Judge at [2] – [15] of the CALL-1 Form.

6. By the Notice of Decision dated 3 August 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director assessed that the level of risk of harm by SAD and his people against the applicant was low and the Director was not satisfied that the applicant had been inflicted with ill-treatment to a minimum level of severity. The Director considered that Mr Bittu or the abductor had good opportunity to inflict serious harm or even kill the applicant but they did not and the abductor only kicked and punched the applicant for a few minutes. The Director also did not accept the applicant’s assertion that Mr Bittu could track him down with nationwide connection as the facts remained that the applicant had never been located and found by Mr Bittu after he fled from his home. It was also considered that the availability of state protection and the possibility of relocation would further lower or negate the perceived risk. The decision covered the torture risk, BOR 2 risk, BOR 3 risk and the persecution risk.

7. The applicant appealed to the Torture Claims Appeal Board against the Director’s decision. An oral hearing was held on 22 November 2017. By its decision dated 17 January 2018, the Board considered at [18] of its decision that the applicant did not make out his case that Mr Bittu had threatened him to join SAD as the applicant was only a low level supporter of CP with minimal participation in the political activities. The Board found that the applicant did not face a real risk of harm if refouled to India and the availability of state protection and possible internal relocation would further lower/negate the risk. The applicant was unable to discharge the burden upon him to establish any of his claims under all applicable grounds and his appeal to the Board was dismissed.

The Judge’s decision

8. The intended judicial review was in respect of the decisions of the Director and the Board. The Form 86 filed by the applicant on 5 February 2018 set out three grounds of appeal which can be summarized as follows:

(i) The Director and the Board were unreasonable and unfair and the applicant’s right to life was protected by Article 28 of the Basic Law and Article 2 of the Bills of Rights Ordinance.

(ii) The Board failed to give the applicant sufficient time and chance to arrange relevant evidence to prepare his non-refoulement claim and his appeal before the Board.

(iii) The applicant is a genuine claimant who would face danger and risk of torture if refouled. He could not find any safe place to stay in his country and to escape was the best option he would have.

9. The Judge heard the application for leave to apply for judicial review on 8 June 2018. After summarizing the background of the case and giving consideration to the decisions of the Director and the Board, the Judge gave his reasons in refusing leave in paragraphs [35] to [40] of the CALL-1 form:

“Discussion

35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[1]

37. The current application is only concerned with the Director’s decision dated 3 August 2017 and the Adjudicator’s decision dated 17...

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