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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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| RE: |
SHRESTHA SANTOSH KUMAR |
Applicant |
__________________________
| Before: Hon Lam VP, Yuen and Kwan JJA in Court |
| Date of Judgment: 6 September 2018 |
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JUDGMENT
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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:
“ 14. The affirmation here contains no grounds hence the oral hearing to give the applicant an opportunity in open court to make submissions to support his application. In open court the applicant had nothing to say and no grounds to put forward except that he had said everything already and he was on the Maoist’s “wanted list”.
…
16. Even though the applicant had no grounds to put forward to support this application I still considered carefully the adjudicator’s decision-making process. I find he has considered the claim and evidence carefully. I have considered, whether the adjudicator has made any error of law, or handled the matter or not complied with a high standard of fairness as required by the law. I find no issues.
17. I have also considered whether his decision satisfy the enhanced Wednesbury test by means of a rigourous examination and anxious scrutiny of his decision-making process and the reasons by which he reached his decision.
18. In my judgement, this application is not reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung and anor (2007) 10 HKCFAR 676, para 14-17. I refuse leave to apply for judicial review.”
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:
(a) The judge was wrong in law in holding that there was no state acquiescence or involvement; and
(b) The judge failed to provide detailed reason in support of her decision.
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:
(a) The board misdirected himself that the applicant needed to have experienced torture in the past to establish substantial grounds for being subjected to torture in future;
(b) The board failed to carry out sufficient inquiry...
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