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CACV 117/2019
[2019] HKCA 831
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 117 OF 2019
(ON APPEAL FROM HCAL 1411/2018)
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| RE: |
CHAUDHRY ASJAD IQBAL |
Applicant |
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Before: Hon Kwan VP and Barma JA in Court
Date of Judgment: 1 August 2019
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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 KW Lung given on 27 February 2019 refusing the applicantleave 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 16 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 29 January 2018 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Pakistan. He entered Hong Kong on 17 December 2013. He raised a non-refoulement claim after he was refused entry.
3. The applicant’s claim was based on threats from members of an opposing political party. 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 29 January 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], 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 29 June 2018, the Board dismissed the appeal on 16 July 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection. At [32] of the Board’s Decision, the Board held that the applicant did not face a real risk of suffering from any of the proscribed harm.
The judge’s decision
6. The applicant filed a Form 86 on 17 July 2018 which contained the following grounds for judicial review, summarised below:
(1) the Board failed to make sufficient enquiry;
(2) the Director’s Decision and the Board Decision were unreasonable and unfair;
(3) the Board failed to give the applicant sufficient time and chance to arrange relevant evidence;
(4) the Director failed to give proper weight to the issue of state acquiescence;
(5) the Board and the Director failed to consider the misconduct by the Pakistani police;
(6) the Director failed to consider or give sufficient weight to relevant Country of Origin Information;
(7) the Adjudicator failed to make sufficient enquiry before making the determination;
(8) the Adjudicator was wrong to demand evidence from the applicant because the applicant was being kept in the detention centre; and
(9) the Adjudicator failed to give sufficient chance to the applicant to arrange for relevant evidence to support the claim.
7. In the affirmation in support of the leave application filed on 17 July 2018, the applicant produced the hearing bundle before the Board.
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:
“The Director’s Decision
12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.
13. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.
14. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.
The Board’s Decision
15. It is obvious that the applicant’s claim is facts sensitive. The Board had rejected all of his evidence in relation to the facts of the case. There is simply no factual basis in support of his claim.
16. Facts are to be found by the Director or the Board. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§13 and 14:
‘13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….
14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court….”
17. Grounds (1) to (7) are either the applicant’s opinion without any evidence to support or they are the facts to be found by the Director or the Board. They fail.
18. As to ground (8), the Adjudicator was entitled to ask for evidence from the applicant as he has the burden of proof. He had not asked for indulgence or assistance from the Adjudicator. This ground fails.
19. As to ground (9), the applicant was unable to identify the relevant evidence in support of his claim that he intended to adduce to the Board. This ground fails too.
20. I find that the applicant is unable to show that he has reasonable chance of success in his intended judicial review.
CONCLUSION
21. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”
Grounds for appeal
9. In the Notice of Appeal dated 11 March 2019 the applicant advanced the following grounds of appeal:
“My life is danger’s in my origin country in Pakistan that’s why I cannot go back my home country Pakistan could you please save my life bundle of thanks.”
10. In his affirmation of the same day filed in support of the appeal, the applicant simply exhibited the CALL-1 Form.
11. The applicant agreed by a letter of 11 March 2019 that the appeal could be heard by two judges.
12. The applicant failed to comply with the direction made by this court on 2 April 2019 requiring him to lodge skeleton submissions not less than 28 days before the hearing of the appeal (subsequently fixed for 10 June 2019), 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 10 June 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
15. The only ground of appeal set out in the Notice of Appeal is concerned with the alleged danger upon his return. This ground is not directed towards any error on the part of the judge. It is therefore not a viable ground of appeal. In any event, the Board has already held that the applicant is unlikely to suffer from any of the proscribed harm upon his return. The applicant failed to show any public law error in the Board’s Decision. His application for judicial review therefore had no reasonable prospect of success and the judge was right to dismiss it.
16. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Susan Kwan) |
(Aarif Barma) |
| Vice-President |
Justice of Appeal |
The applicant acting 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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