RE HUSSAIN IBRAR

CACV 555/2018

[2019] HKCA 426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 555 OF 2018

(ON APPEAL FROM HCAL 333/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Campbell-Moffat J given on 19 November 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 9 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 31 October 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 20 June 2016 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 23 June 2016. 

3.  The applicant’s claim was based on threats from a man identified as Imran arising out of the sale of a motorcycle by Imran to the applicant, and an incident in which an associate of Imran was killed in a confrontation with other family members of the applicant.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form [2018] HKCFI 2119.

4.  By a Notice of Decision dated 31 October 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 10 January 2018, the Board dismissed the appeal on 9 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [67] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [74] that state protection would be available for the applicant and at [75] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 1 March 2018 which contained no ground for seeking relief.

8.  In the affirmation in support of the leave application filed on 1 March 2018, the applicant advanced the following grounds for judicial review which were summarised by the judge as follows:

(1)   The Adjudicator acted irrationally and/or unreasonably, in that he:

   (a)  failed to consider the concept of state acquiescence and/or the extended form of state acquiescence;

   (b)  failed to place weight on relevant information;

   (c)  placed weight on irrelevant information, or incorrect or inaccurate facts;

   (d)  failed to consider a consistent system of human rights violations;

   (e)  failed to consider if state protection exists in Pakistan;

   (f)  failed to consider the COI;

   (g)  used an improper basis for consideration of internal relocation;

   (h)  failed to provide adequate reasons; and/or

   (i)   there was no proper basis for rejecting the applicant’s credibility.

(2)   There was procedural impropriety in that the Adjudicator;

   (a)  made insufficient enquiry;

   (b)  failed to investigate COI;

   (c)  failed to call for psychological or psychiatric reports;

   (d)  applied the incorrect standard of proof; and

   (e)  the procedure was irregular as the decision maker was not the interviewing officer.

9.  The applicant did not request an oral hearing before the judge, who therefore dealt with the application on paper.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [13] of the CALL-1 Form:

“11. There are no particulars provided for any of the Applicant’s grounds. They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the Applicant and a waste of judicial time. In several respects they are wholly irrelevant and bear no relation to the matters at hand. The Applicant has a duty to state the grounds of his intended judicial review and why they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. It is incumbent upon the Applicant to make good his grounds, which he has failed to do. Without more, the court is restricted to that which is self-evident from the papers. All of the Applicant’s grounds are without merit either for the reasons given above or because the issue does not arise in all the circumstances of this case. In addition, the interviewing officer was delegated to carry out his function by the Director in a lawful and proper manner. There is no issue of irregularity in that respect.

12. I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 26 November 2018, the applicant complained that he did not have any legal representation for his claim based on BOR 2 risk before the Director and his application for judicial review.

12.  The applicant failed to comply with the direction made by this court on 18 January 2019 requiring him to lodge skeleton submissions by 15 February 2019, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 19 March 2019 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

15.  The only ground of appeal is based on the lack of legal representation.  This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.