RE AHMED MIAN SHAHZAD

CACV 374/2019

[2021] HKCA 584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 374 OF 2019

(ON APPEAL FROM HCAL NO. 801 OF 2018)

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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 Bruno Chan given on 2 August 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 26 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally in early 2016 and was arrested by the police on 28 March 2016.  He lodged a non-refoulement claim on 19 May 2016. 

3.  The applicant’s claim was based on threats from a group of Shia Muslims.  The details of the applicant’s claim have been summarised by the judge at [2] to [10] of the CALL-1 Form.

4.  By a Notice of Decision dated 21 November 2016 (“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 (“the Board”).  After a hearing on 2 January 2018, the Board dismissed the appeal on 26 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [26] of the Board’s Decision, the Board found that the applicant has not made out a case for non-refoulement protection.  The Board was also satisfied at [29] that state protection would be available for the applicant and at [50] that internal relocation would be viable.

The Judge’s decision

7.  The applicant filed a Form 86 on 7 May 2018 which contained the following grounds for judicial review, summarised below:

(1)  that the Director failed to examine or give sufficient weight to the extended concept of state acquiescence;

(2)  that the Director failed to take into account that inaction of government officials can effectively hold the state liable when they fail to provide reasonable protection to its citizens against risk of torture;

(3)  that the Director failed to take such argument into account or to give sufficient weight in such argument when reaching his decision;

(4)  that the Director wrongly relied on different sources of information to conclude that reforms are on-going in Pakistan which were mere speculation;

(5)  that the Director failed to recognize that corruption and incompetency of the Pakistani police are still extremely serious;

(6)  that the Board failed to make sufficient enquiry before finalizing its decision such as finding that the applicant’s injuries were not serious without advising him to obtain medical reports or evidence from Pakistan before deciding the seriousness of the injuries sustained by him; and

(7)  that the Board failed to call for medical reports before deciding whether actions of violence were severe enough to be qualified as torture.  

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 [16] to [21] of the CALL-1 Form:

“16. These are however 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 the decision, or what relevancy was the extended concept of state acquiescence to his claim, in what way did the Director fail to take into account relevant COI as to reforms in Pakistan or the corruption and incompetency of its police, or why it was necessary or relevant to call for medical report in his case, or in what way did the Director or the adjudicator fail to make proper or sufficient enquiry before finalizing their decisions. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and given the fact that Sunni Muslims constitute the majority of the population in Pakistan and without any evidence of official involvement, I fail to see why the concept of state acquiescence would be relevant to his case, nor do I find any of his grounds reasonably arguable for his intended application.

17. As has been repeatedly emphasized by the Court of Appeal, 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.

18. As noted above, the applicant did not clearly or properly identify any error of law or procedural unfairness in the Board’s decision, and in the absence of which I do not find any reasonably arguable basis to challenge the finding of the Board.

19. Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

20. 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.

21. 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

9.  In the Notice of Appeal dated 13 August 2019 the applicant contended that:

“I would like to reject and review the decision made by the court, they disregard my dangerous situation.”

10.  The applicant failed to comply with the direction made by this Court on 3 September 2019 requiring him to lodge skeleton submissions by 28 days before the hearing date, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

11.  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.

12.  The hearing date on 17 December 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

13.  As for the sole ground of appeal advanced in the notice of appeal, we note that the judge has already held at [19] that both the Director and the Board had established that the risk of harm was a localized one and that the applicant could relocate to other part of Pakistan.  Further, the applicant did not give any particulars as to how the court has disregarded his dangerous situation.  This ground is without merit.

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