RE HUNAIN LATIF ZADHA

CACV 605/2020

[2021] HKCA 1277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 605 OF 2020

(ON APPEAL FROM HCAL 2089/2018)

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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 Deputy High Court Judge Bruno Chan given on 14 September 2020 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 (“Board”) dated 20 September 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 26 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan. He entered Hong Kong on 9 June 2015 illegally and was arrested by the police on 11 June 2015. He lodged a non-refoulement claim on 13 June 2015.

3.  The applicant’s claim was based on threats from his paternal uncles and cousins arising out of a land dispute. The details of the applicant’s claim have been summarised by the judge at [1] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 26 February 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 Board. After a hearing on 14 August 2018, the Board dismissed the appeal on 20 September 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [50] - [60] of the Board’s Decision, the Board found that the applicant’s evidence was limited and vague and the Board did not accept the applicant was embroiled in any land dispute with his uncle and cousins. The Board did not accept that the applicant faced any real risk of harm.

The judge’s decision

7.  The applicant filed a Form 86 on 2 October 2018 seeking to judicially review the Director’s Decision and Board’s Decision which contained the following grounds for judicial review, as summarized by the judge at [10] of CALL-1 Form:

(1) that the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim and that they were not reasonable or fair;

(2) that the Board failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to the unfair outcome of rejecting his claim;

(4) that the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies as well as the politicians for which the state should be rendered liable to the Applicant because of the state and public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give enough weight to the evidence in the listed relevant COI which supported the Applicant’s averments that the police in his country would not be able to protect him;

(6) that the Director failed to consider the fact that corruption and incompetency of the administration in the Applicant’s country were still very serious problems as reported by various human rights organization which supported the Applicant’s assertion, and this was a clear case of unfair attitude shown by the Director which is enough to render his decision void; and

(7) that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law.

8.  In his affirmation in support of the leave application filed on 2 October 2018, the applicant exhibited the relevant document without giving any ground.

9.  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 [16] of the CALL-1 Form:

“11. These are however all just broad and vague assertions of the Applicant containing several pages of 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 decision, or in what way were their decisions unfair or unreasonable, or how did the adjudicator fail to give him sufficient time and opportunity to submit his relevant evidence for his claim or appeal, or in what way was state acquiescence relevant to his claim, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standard of fairness in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor did he attend the scheduled hearing of his application without any explanation. As such I do not find any of his grounds reasonably arguable for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 50 – 60 of its decision with the benefit of hearing him during his appeal hearing before the adjudicator, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. Furthermore, the fact is that it has been established by the Director in his decision 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 other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. In the premises and having considered 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.

16. 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

10.  The applicant was late in bringing his appeal from the judge’s decision. After considering the relatively brief delay of 1 day, the explanations offered by the applicant and the then public health situation, the judge granted an extension of time to appeal on 10 November 2020.

11.  In the Notice of Appeal filed on 12 November 2020, the applicant stated that:

“1. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

2. I submit that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

3. The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that I had failed to advice any credible evidence to prove material elements of his claim.

4. It is to be noted that the applicant is a torture-claimant who has no or limited options at my disposal to bring my evidence before the tribunal, and that to when he is in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

5. Surprisingly, the director in my Decision while referring to relevant COIs kept including meaning which suited my pre-conceived conclusion. This was a clear case of unfair attitude shown by the Director which in itself is enough to render my Decision void.”

12.  The applicant failed to comply with the direction made by this court on 29 June 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, 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 30 August 2021 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.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker. On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review. We have therefore not given any weight to the grounds pertaining to alleged errors by the Director and the Board.

16.  As for the ground based on the alleged failure by the judge to take into account the lack of consideration of state acquiescence in the Director’s Decision, that decision has been overtaken by the Board’s Decision for the purpose of an application for judicial review. This ground is completely without merit.

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