RE AKRAM RAJA NOMAN

CACV 384/2019

[2019] HKCA 1361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 384 OF 2019

(ON APPEAL FROM HCAL NO. 989 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 2 August 2019 refusing to grant his leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 14 May 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 17 November 2017 rejecting his non-refoulement claim.    

2.  The appeal was listed for hearing on 3 December 2019.  The applicant was directed to lodge two sets of skeleton argument on or before 5 November 2019 and also warned that if he failed to do so, he would be deemed to have abandoned his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning were communicated to the applicant by letter dated 9 September 2019 and the Notice of Hearing dated 14 October 2019.

3.  The requirement for lodging skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is essential for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not to be permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing. 

4.  In the present case, as the applicant had failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have proceeded to consider his appeal on paper based on the available materials.

5.  The applicant is a Pakistani national, who entered Hong Kong illegally.  On 27 August 2015, he surrendered himself to the Immigration Department.  On 27 March 2017, he raised a non-refoulement claim on the ground that he feared he would be harmed or even killed by bombing attack as he lived in Kashmir near India and Pakistan border. 

6.  The applicant’s claim was set out in details in [6] of the Director’s decision, and summarised by the Judge in [1] to [5] of the Form CALL-l dated 2 August 2019, [2019] HKCFI 1906.  In gist, the applicant said in 2005, due to his father’s job, he and his family moved to Azad Kashmir, which has since 1947 been in a state of political instability as India and Pakistan have been fighting over it.  The place has been hard hit by massive unrest and indiscriminate exchange of gunfire.  Between 2012 and 2014, the applicant went to work in Libya.  In late 2014, during an episode of heavy gunfire near his home, his mother was killed.  Fearing for his safety, the applicant’s uncle arranged for him to leave the country.  He went to mainland China, where he later sneaked into Hong Kong by boat. 

7.  By the decision dated 17 November 2017, the Director rejected the applicant’s claim having regard to the torture risk^[1], BOR 2 risk[2], BOR 3 risk^[3], and persecution risk^[4] grounds.  

8.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 28 March 2018.  By a decision dated 14 May 2018, the Board dismissed the appeal.  The Board found that the applicant’s claim was generally consistent and truthful, and his case about the situation in Kashmir was consistent with country information available to the Board.  The Board, however, found that as the risk of random gunfire and violence was localized and confined to the Kashmir area, such that internal relocation would be a viable option to avoid the risk of harm.  The Board accepted that it would be upsetting for the applicant to leave his wife in Hong Kong and return to Pakistan while his dependant visa application is being processed.  It, however, noted that his father and sister had safely relocated from Kashmir to Karachi, which coupled with the applicant’s level of education and his experience living and working in Libya, it was not unduly harsh for him to return to Pakistan and to relocate to Karachi. 

9.  The applicant filed a Form 86 together with a supporting affirmation on 1 June 2018 to seek leave to apply for judicial review against the decision of the Board.  The applicant advanced the following grounds for seeking relief:

(1)  The Board’s hearing was unfair as it failed to make appropriate arrangements for the hearing bundle.  There was insufficient time for him to prepare for the appeal hearing as the hearing bundle was provided to him shortly before the Board’s hearing, and there was no interpretation.

(2)  Although the applicant answered all the questions honestly, the Board found his evidence incredible. 

(3)  The Board relied on source of news which was not officially recognized or was simply hearsay, and cases which were outdated, considering the dramatic changes.  The lack of credible source of information had resulted in the groundless speculation that it was safe for him to return to his country of origin.

10.  At the applicant’s request, the Judge heard the leave application at a hearing held on 14 September 2019. The Judge considered the intended judicial review not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review.  He gave his reasons at [24] to [36] of the Form CALL-1 as follows:

“24. The Applicant complained there was a lack of legal representation after the Director's decision dated 17 November 2017.

25. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

26. The Applicant complained there was a lack of language assistance.

27. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

28. In any event, in the current application a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. He was also assisted by interpreters while still being represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

29. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

30. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

31. The Applicant said he received the appeal bundle on or about 21 March 2018 before the Board hearing scheduled for 28 March 2018. That was 7 calendar days (or 6 working days) before the Board hearing. The bundle was served on the Applicant in time.

32. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult and there was no evidence to suggest the bundle was voluminous or difficult.

33. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

34. The Applicant said in his affirmation that he answered all the questions honestly. That meant he knew well what was asked and how to answer. He was not confused.

35. The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that. The Applicant failed to give specifics.

36.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. He had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

11.  The applicant filed a notice of appeal on 19 August 2019, in which the following was put forward as grounds of appeal:

(1)  The Judge failed to show the reason for dismissing the application for leave to apply for judicial review.

(2)  The Board believed the applicant was telling the truth but refused his claim.  It said the applicant could live in other place in Pakistan. The Judge just followed the Board’s reason and decision.

(3)  The Judge’s order was not fair.  He could ask the applicant any questions and acted like his enemy.  The applicant could not answer his questions as he was a judge of the High Court.

(4)  The court provided the applicant with an interpreter, but not a lawyer.  Without a lawyer, he could not point to any error of law.    

12.  We do not agree the Judge did not give reasons for his refusal of the leave application.  On the contrary, as set out in [10] above, the Judge had provided detailed explanations for his decision. 

13.  With regard to the Board’s view that internal relocation is reasonably available to the applicant, this is a view that the Board is entitled to come to on the materials before it.  While we can understand the applicant’s disagreement to the Board’s conclusion, the Court will only interfere with the Board’s decision if it can be shown that there are errors of law, procedural irregularity or unfairness in its decision or the process by which the decision was arrived at.  We agree with the Judge that, on the materials available in the present case, there is no proper basis to disturb the Board’s decision. 

14.  As to the complaint about no legal assistance, it is established law that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings.  In any event, the Judge had reviewed the Board’s decision and reasons and concluded there was no error of law.  We agree with his conclusion.

15.  Finally, on the complaint that the Judge’s order was unfair, we have reviewed the Judge’s reasons and decision, and do not discern any error or basis to overturn the Judge’s order.

16.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.