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CACV 529/2019
[2021] HKCA 589
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 529 OF 2019
(ON APPEAL FROM HCAL NO. 2984 OF 2018)
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| RE: |
AFAQ MUHAMMAD |
Applicant |
_____________________
Before: Hon Yeung, Lam VPP and Barma JA in Court
Date of Written Submissions: 28 May 2020
Date of Judgment: 7 May 2021
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J U D G M E N T
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The Court:
1. This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 8 November 2019 refusing leave to the applicant 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 17 December 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 January 2018 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Pakistan. He entered Hong Kong on 8 February 2015 illegally and surrendered to the Immigration Department on 23 February 2015. He lodged a non-refoulement claim on 17 June 2015.
3. The applicant’s claim was based on threats from a man identified as Rasheed with whom the applicant had a traffic accident. Rasheed was said to be a violent man who demanded repayment for his injury. The details of the applicant’s claim have been summarised by the judge at [3] to [4] of the CALL-1 Form.
4. By a Notice of Decision dated 10 January 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], the 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 12 October 2018, the Board dismissed the appeal on 17 December 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection. At [73] – [75] of the Board’s Decision, the Board did not accept the applicant’s account about Rasheed’s political connections. The Board held that there was nothing to suggest that the applicant will be subject to any of the proscribed harm upon his return to Pakistan.
The Judge’s decision
6. The applicant filed a Form 86 on 27 December 2018 which contained no ground for seeking relief.
7. In his affirmation in support of the leave application dated 27 December 2018, the applicant advanced the following grounds for judicial review as summarized by the judge at [11] of the CALL-1 Form:
“1. Procedural impropriety – failure to properly apply para 2 of the UN committee against Torture General Comment No 2 whereby satisfaction of a National states [sic] obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event.
2. Procedural impropriety – failure to afford an opportunity to present his case in an oral hearing in breach of the principles set out in the Court of Appeal Decision of ST v Betty Kwan & Anor (2014) 4 HKLRD 277.
3. Procedural impropriety/irrationality – failure to give sufficient reason to support conclusion in relation to BOR 3 risk.
4. Error/misdirection in law – failing to take into account the consideration of psychological strain and threats to him personally or threats to kill him.”
8. 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 [12] to [21] of the CALL-1 Form:
“12. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained it to him. His friend had assisted him with the Hearing Bundle and the Board’s Decision.
13. I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments on them.
14. It is quite obvious that, apart from some fundamental facts such as his nationality, the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant.
15. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].
16. Grounds (1) is his opinion without any evidence in support of it.
17. Ground (2) is not true. He had attended a hearing before the Adjudicator of the Board.
18. Ground (3) is not true. The reasons have been given in the Board’s Decision. They are sufficient reasons.
19. Ground (4) is not sustainable because he had not raised it before the Board at the hearing.
20. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.
CONCLUSION
21. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.”
Grounds for appeal
9. On 19 November 2019 the applicant filed a notice of appeal against the judge’s decision. The applicant claimed that the judge was wrong in law in holding that there was no state acquiescence or involvement, and that the judge failed to provide a detailed reason in support of his decision. Also, the judge wrongly ignored the country of origin information.
10. In his affirmation of the same date, the applicant reiterated the grounds in the notice of appeal.
11. The applicant failed to comply with the direction made by this Court on 2 April 2020 requiring him to lodge skeleton submissions on or before 9 April 2020, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.
12. 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 the 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.
13. The hearing date on 21 April 2020 was therefore vacated. On 28 May 2020, the applicant lodged a skeleton submission where he submitted that:
(1) the Board failed to meet the high standard of fairness in that it had adopted a practice of not questioning the decisions of the Director, and had also failed to consider country of origin information; and
(2) the Board failed to act fairly.
14. We have dealt with the appeal on paper on the basis of the materials already filed with the Court.
Discussion
15. In the notice of appeal, the applicant complained that the judge failed to consider the country of origin information and that he was wrong in law in holding that there was no state acquiescence or involvement. These grounds were not raised as grounds for judicial review before the court below. It is not open to the applicant to raise these grounds on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 524, CAMP 54/2018 at §14(4)).
16. In relation to the ground concerning the alleged insufficiency of reasons given by the judge for his decision, we note that the applicant only advanced very broad grounds for judicial review before the judge. He did not give any particulars for those grounds. In the circumstances, we consider that the judge has given sufficient reasons for his decision.
17. As for the grounds raised in the skeleton submission, they are very broad grounds and lacked particulars. Further, they concern the alleged errors by the Board and do not point to any error on the part of the judge. These grounds are therefore not viable.
18. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
(W Yeung)
Vice President |
(M H Lam)
Vice President |
(Aarif Barma)
Justice of Appeal |
The applicant, unrepresented, acted in person
[1] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap.383
[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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