RE MOHAMMED TAJ

CACV 337/2020

[2021] HKCA 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 337 OF 2020

(ON APPEAL FROM HCAL 2433/2018)

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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 KW Lung given on 28 July 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 18 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 18 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 2 August 2014 as a visitor and was permitted to remain until 16 August 2014.  He overstayed and was arrested on 2 September 2014.  He lodged a non-refoulement claim on 4 September 2014. 

3.  The applicant’s claim was based on threats from a man known as Bhutta.  The applicant and Bhutta disliked each other since they were young and their animosity grew after they joined different political parties.  He injured Bhutta in a fight, after which he feared that Bhutta would seek revenge on him.  The details of the applicant’s claim have been summarised by the judge at [2] to [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 18 September 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 27 July 2018, the Board dismissed the appeal on 18 October 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [56] of the Board’s Decision, the Board found that the dispute between the applicant and Bhutta was essentially a personal one originating from their childhood and that Bhutta is unlikely to cause him harm after the applicant had been away for so long.  The Board was also satisfied at [58] that state protection would be available for the applicant and at [59] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 1 November 2018 which contained the following grounds for judicial review, as summarized by the judge at [10] of CALL-1 Form:

(1)  the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2)  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)  he was confused at the appeal hearing;

(4)  the Board was unfair and had not given greater care to a self-represented claimant;

(5)  the Board had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

(6)  the Board had applied the incorrect standard of proof;

(7)  the Board had considered irrelevant facts or had failed to considered facts which were in favour of his case;

(8)  the Board had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(9)  the Board had relied upon hearsay information and outdated material in relation to COI;

(10)  the Board had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

(11)  the Board had not considered USHR 2010, USRF 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to India” Autumn 2011, which is favourable to his case;

(12)  the Board failed to fulfil his obligation to obtain the requisite documents for his adjudication;

(13)  the Board was wrong in state protection in his country;

(14)  BOR 2 risk was assessed without screening;

(15)  the Board failed to call for psychological and psychiatric reports on the applicant; and

(16)  the applicant was not legally represented or legally assisted 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 [11] to [20] of the CALL-1 Form:

“11. The applicant appeared before me and he confirmed that he was free to advance his case before the immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had assisted him to understand the hearing bundle and the Board’s Decision.

12. I put the Board’s findings to him and asked him if he had any comments on them. He said that he had hurt Bhutta and he believed that Bhutta would take revenge on him. He had no other comments on the Board’s findings.

13. It is quite obvious that the Board took what he said as the facts of the case. But applying the laws and Convention to his case, he simply had no case for non-refoulement under the law. The applicant is unable to show how the Board had made any mistakes in its assessment of the case.

14. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

16. The Court of Appeal in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

17. The grounds above are irrelevant. They are inconsistent with the facts stated in court (1 3 & 14); opinions without any evidence or particulars (4-13) or simply not raised before the Board (15). Ground (16) will not assist him as found by the Court of Appeal.

18. There is nothing amiss in the application of the relevant statutory provisions and the Convention by the Board to the applicant’s case.

19. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

20. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application for leave to apply for judicial review.”

Grounds for appeal

9.  In the Notice of Appeal dated 10 August 2020, the applicant contended that:

(1)  the judge has wrongly come to the conclusion that the Board has not erred in his decision;

(2)  the Board decided he was not a credible witness due to discrepancies in various documents.  The applicant was in fact suffering from difficulty with the English language and the lack of interpretation and language assistance; and

(3)  the applicant did not have anyone from whom to seek legal advice.

10.  The applicant agreed by a letter of 10 August 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 12 November 2020 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.

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 1 February 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

13.  The applicant contended that the Board wrongly found him to be incredible and that the judge wrongly upheld the Board’s Decision.  However, the Board has in fact fully accepted the applicant’s version of events ([55] Board’s Decision). 

14.  The applicant also complained in the Notice of Appeal that:

“[the] judge dismissed my claims because ‘it was then transpired that his confusion was more to do with his own memory and inability to answer questions properly. He was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood…”

15.  The judge did not make any such finding.  The grounds advanced in the Notice of Appeal did not engage the judge’s reasoning at all.

16.  The applicant also complained about the lack of language assistance in his ground based on the alleged adverse finding on his credibility.  Although the applicant has not advanced an independent complaint based on the lack of language assistance, we would add that the applicant was able to submit documents in English to this court and the court below.  It is clear that either he is reasonably proficient in English or has access to language assistance.  We are thus not satisfied that the applicant suffered any real prejudice due to a lack of language assistance. 

17.  As for the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application. 

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