RE ZAMAN SHEIKH MUHAMMAD SARFRAZ

CACV 476/2018

[2019] HKCA 195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 476 OF 2018

(ON APPEAL FROM HCAL 927/2017)

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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 Deputy High Court Judge Bruno Chan given on 14 September 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 25 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 10 June 2016 and 29 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 21 January 2016 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 26 January 2016.

3.  The applicant’s claim was based on threats from members of a political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [8] of the CALL-1 Form.

4.  By a Notice of Decision dated 10 June 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 29 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 28 September 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 25 October 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [19] of the Board’s Decision, the Board found that the level of risk of the applicant being subject to ill treatment if he is refouled to Pakistan is low. The Board was also satisfied at [21] that state protection would be available for the applicant and at [22] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 22 November 2017 which contained the ground for seeking relief as summarised below:

(i)   that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence of his torture by the police in the consideration of his claim;

(ii)   that the Director failed to consider or give sufficient weight to the relevant country of origin information (“COI”) on the inability of the police in Pakistan to protect its citizens in the consideration of his claim;

(iii)   that the Director was being unfairly and improperly selective in the use of COI against his claim and failed to find that corruption and incompetency in the administration is still a very serious problem in Pakistan in the consideration of his claim;

(iv)   that the Director failed to attain high standard of fairness in the consideration of his claim; and

(v)   that the Board failed to make sufficient enquiry before finalizing her decision and failed to give sufficient chance to the applicant to arrange relevant evidence to support his non-refoulement claim and in his appeal.

9.  In the affirmation in support of the leave application dated 22 November 2017, the applicant only exhibited the relevant documents without expanding on the grounds for judicial review.

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 [15] to [20] of the CALL-1 Form:

“15. These are all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or fail to give him sufficient opportunity to produce evidence in support of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, for which the court will not usurp their role as primary decision makers, and in the absence of any legal error or procedural unfairness or irrationality being identified by the applicant in their decisions, judicial review is not to be treated as an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

17. As to the additional COI produced by the applicant in his supporting affirmation of the same date as to the general situations of police abuse and human rights violation in Pakistan, which were never produced before the Director or the Board, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati and Maria Zubair [2018] HKCA 461. As found by both the Director and the adjudicator, there is no basis to accept that the applicant would face any real risk of such harms or abuse upon his return to Pakistan.

18. Further, as it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to another part of Pakistan, there is simply no justification to afford him non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

20.   For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

11.  In the Notice of Appeal dated 26 September 2018, the applicant’s only ground of appeal was the contention that “the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative respondents while considering my non-refoulement claim.  I should be given an opportunity to plead my case properly.”

12.  In his affirmation dated 26 September 2018 filed in support of the appeal, the applicant added that “I was informed that the [Director] and the [Board] did not saw the grounds to reverse their decisions”.

13.  The applicant failed to comply with the direction made by this court on 9 November 2018 requiring him to lodge skeleton submissions by 31 December 2018, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

14.  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.

15.  The hearing date on 30 January 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

16.  The grounds raised in the Notice of Appeal and the affirmation dated 26 September 2018 are all concerned with alleged errors on the part of the Board and the Director.  They do not identify any error in the judge’s decision, and are thus not viable grounds of appeal. 

17.  Further, as has been stated on many occasions, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The complaints by the applicant in this court and below are vague and lacking in particulars and fail to identify any public law errors such as would justify the grant of leave to bring judicial review proceedings.

18.  We would therefore dismiss the appeal, as it is wholly lacking in merit.