RE MUHAMMAD AZAM

CACV 16/2018

[2018] HKCA 326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 16 OF 2018

(ON APPEAL FROM HCAL NO 161 OF 2017)

__________________________

__________________________

________________

J U D G M E N T

________________

Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the judgment of Deputy High Court Judge Woodcock on 11 January 2018 refusing leave to the applicant to apply for judicial review.

2.  The applicant is a national of Pakistan.  He had previously come to Hong Kong in 2006 and lodged a torture claim in August 2008. He subsequently withdrew his claim in September 2012 and returned to Pakistan on 16 November 2012.

3.  Then, he came to Hong Kong illegally again in September 2013.  He was arrested on 11 November 2013.  He made a non-refoulement protection claim on 13 November 2013.  The claim was based on alleged threat and attack by a person called Mushtaq and his associates due to religious differences. Mushtaq was a Sunni Muslim whilst the applicant was a Shia Muslim.

4.  The Director decided against the claims on 21 December 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s Decision”).  By a Further Decision of 10 February 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

5.  The applicant appealed to the Torture Claims Appeal Board on 4 January 2016.  After a hearing held on 8 March 2017, the Board dismissed the appeal on 10 April 2017 (“the Board’s Decision”).

6.  The intended judicial review was in respect of the Board’s Decision.

7.  On 7 November 2017, the applicant’s solicitors wrote to the Court to seek an adjournment of the hearing fixed for 13 November 2017.  They said that the applicant had only retained the firm on 6 November 2017 and they had engaged counsel.  The legal aid appeal would be heard on 9 November 2017.  They needed an adjournment for counsel to consider the papers and to prepare a draft Amended Form 86.  They also needed time to obtain a copy of the audio recording of the hearing before the Board. 

8.  On 8 November 2017, the judge directed that any application should be heard on the hearing of 13 November 2017.  By a letter dated 10 November 2017 the applicant’s solicitors submitted a draft Amended Form 86 and a draft 2^nd Affirmation of the applicant to the Court.

9.  On 13 November 2017, the applicant filed an ex-parte summons to amend the Form 86, which was allowed by the judge on the same day.  The applicant was represented by counsel at the hearing on 13 November 2017.  His counsel made an application to adjourn the hearing.  The judge refused this application at the hearing and she gave reasons for the refusal at [69] of the judgment dated 11 January 2018:

“ 69. On the hearing date, I refused an application to adjourn for the purpose of the applicant to obtain and hear the audio tape of the appeal hearing. No specific reason could be given for that purpose and I found the objective was a fishing exercise therefore, I refused the application…”

10.  After the hearing, the applicant took out an ex-parte summons on 6 December 2017 for the re-amendment of the Form 86 (“Re-Amendment Application”).  The re-amendment introduced a further Ground 12 concerning the exchange between the applicant and the Board, as evidenced by the recording of the Board hearing.

11.  The judge refused the Re-Amendment Application. She gave reasons for the refusal at [69]-[70] of judgment:

“ 69. After hearing submissions for leave I adjourned and reserved my decision. Three weeks later, solicitors for the applicant filed a further ex parte summons applying for leave to re-amend the Form 86 and add a further ground, applying for leave to file further evidence by way of another affirmation and applying for leave to file a supplemental submission attaching an unofficial uncertified transcript of the audio recording of the oral appeal hearing.

70. It would generally require an exceptional case before the court is prepared to accede to consider additional amendments and evidence after it has adjourned to consider its decision, see Charlesworth v Relay Roads Ltd & Others [2000] 1 WLR 230.  I did consider the additional submissions and amendment; I saw no merit in the additional ground and the transcript was of minimal assistance to the claimant.  From the transcript, the adjudicator was accused of misstating the applicant’s evidence, considering irrelevant matters and acting unfairly which were sweeping accusations I disagreed with.  I did not grant leave to further amend the Form 86, produce a further affirmation or additional evidence or submissions.”

12.  As for the leave application, the judge reviewed the materials carefully.  In the written judgment of 11 January 2018, after summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she went through all the grounds in the Amended Form 86 and dismissed the same.

13.  In the notice of appeal of 23 January 2018, the only effective ground of appeal appears at para 3 which reads as follows:

“ The Judge has commented that the reason for refusing an application to adjourn for the purpose of an applicant to obtain and hear the audio tape of the appeal hearing was because ‘I found the objective was a fishing exercise therefore, I refused the application’. It is proven that the judge has wrongly exercised her case management power by putting unnecessary bias in the determination of my case.”

14.  He did not put forward any ground to challenge the judge’s dismissal of the 11 grounds in the Amended Form 86 or the refusal of the Re-Amendment Application.

15.  The applicant agreed by a letter of 26 January 2018 that the appeal can be heard by two judges.

16.  Notwithstanding directions from the Court and his own professed intention to lodge skeleton submissions at para 2 of the Notice of Appeal, he did not do so.

17.  Having considered the applicant’s case in light of the materials before us, we agree with the judge as to the lack of merit in the grounds raised in the Amended Form 86. 

18.  As regards the applicant’s appeal against the refusal of adjournment, it is a challenge to the judge’s case management decision.  On 13 November 2017, the applicant was represented by counsel ready to argue the matter by reference to the Amended Form 86 dated 24 November 2017 (the draft of which had been provided to the Court on 10 November 2017).  The grounds in that Amended Form 86 could be decided without the audio tape.  Counsel for the applicant did not put forward any specific complaint on the conduct of the hearing before the Board.  In the circumstances, the judge was right to conclude that it was simply a fishing exercise.  We cannot find fault in the refusal to grant the adjournment.

19.  In any event, the judge did have regard to the transcript of the audio recording belatedly produced after the hearing.  She found the same to be of minimal assistance and not capable of supporting the additional ground of challenge. The applicant did not appeal against such finding.  

20.  We do not see any error in the judge’s decision that leave to apply for judicial review should not be granted.

21.  For these reasons, we dismiss the appeal.