RE SALAM ABDUS

CACV 485/2020

[2021] HKCA 601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 485 OF 2020

(ON APPEAL FROM HCAL 713/2018)

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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 7 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 16 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 10 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 26 September 2013 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 10 March 2014. 

3.  The applicant’s claim was based on threats from his neighbour arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 10 April 2017 (“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 1 March 2018, the Board dismissed the appeal on 16 April 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [58] and [65] of the Board’s Decision, the Board rejected the applicant’s case for non-refoulement protection.  The Board held that the applicant is unlikely to be subject to any of the proscribed risks of harm upon his return and that the alleged assailants could not be considered state actors, and was of the view that he chose to leave Pakistan so that he would not have to deal with the land dispute.

The judge’s decision

6.  The applicant filed a Form 86 on 24 April 2018 which contained no ground for seeking relief.

7.  In his affirmation in support of the leave application dated 24 April 2018, the applicant deposed that:

“The [decisions by the Director and the Board], for my application for seeking non-refoulement protection in Hong Kong is not correct. They have failed to consider the ground realities in Pakistan before reaching at their decisions.”

8.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

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 [9] to [14] of the CALL-1 Form:

“9. On 24 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the Board’s decision is not correct as it failed to consider the ground realities in Pakistan before reaching its decision but without providing any particulars or elaborations as to how it was so, nor did he put forward any other proper or valid ground for his intended challenge. He did not request any oral hearing for his application either. As such 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 for his intended challenge.

10. 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.

11. In the Applicant’s case, the Board rejected his claim essentially on its finding that it was not out of genuine fear of harm from his neighbours over his family’s land dispute with the Hussains that caused him to leave Pakistan for the thorough and detailed analysis and reasoning set out in paragraphs 69 – 93 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

12. Furthermore, the fact 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.

13. 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.

14. 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.  In the Notice of Appeal dated 17 September 2020, the applicant contended that:

“I am disagree with decision of authorities and court as well. The court and the authorities have been negligent and failed to perform a standard duty of care that is specifically targeted as non-refoulement claimant like me. I believe that my case is of great general or public importance, or leave should be granted on the otherwise limb.”

11.  In his affirmation of the same day filed in support of the appeal, the applicant deposed that:

“Affirmation for leave to Court of Appeal. Against the order [on 7 September 2020]. I am totally disagree with the decision of all authorities and want review my case with this court…”

12.  The applicant agreed by a letter of 17 September 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 21 January 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 26 April 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.  The applicant complained that the authorities and the judge were negligent and that they failed to exercise the proper duty of care.  However, this ground is wholly unparticularised and the applicant did not identify any respect in which the judge could be said to have erred, or any matters that were allegedly ignored by the judge.

16.  Further, the Board has already held that he is unlikely to be subject to any of the proscribed risks of harm upon his return and the applicant entirely failed to substantiate any public law error in the Board’s Decision. 

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