RE SHAMROZ KHAN

CACV 530/2018

[2019] HKCA 276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 530 OF 2018

(ON APPEAL FROM HCAL NO. 900 of 2017)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 19 October 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 3 November 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 June 2017 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 25 February 2019.  The applicant was directed to lodge three sets of skeleton argument by 31 January 2019 and also warned that if he failed to do so, he would be deemed to have waived 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 the Notice of Hearing dated 17 January 2019, which was mailed to him and it has not been returned undelivered.   

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important 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.  As the applicant failed to lodge his skeleton argument by the stipulated time, the hearing date was vacated.  The applicant was informed of this by letter dated 1 February 2019.  We now proceed to consider his appeal on paper based on the available materials.

5.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 9 June 2015.  On 12 June 2015, he raised a non-refoulement claim based on his fear of being harmed or killed by members of the Muttahida Qaumi Movement (“MQM”) because he refused to join their party.

6.  The applicant’s claim was detailed in [5] to [7] of the Director’s decision and [7] to [14] of the Board’s decision.  In gist, the applicant was a supporter of Pakistan Tehreek-e-Insaf, which is the ruling party in Pakistan.  In 2015, members of MQM demanded the applicant and his two business associates to either pay protection money for their garment business or to join MQM.  They received several oral threats, including death threat.  They were also assaulted once, but sustained no injury and did not require medical treatment. Fearing for their safety, they left Pakistan for mainland China, from where they came to Hong Kong. 

7.  By a Notice of Decision dated 29 June 2017, the Director rejected the applicant’s claim on all applicable grounds, namely, torture risk[1], persecution risk[2], BOR 3 risk[3] and BOR 2 risk[4]. The Board heard the applicant’s appeal on 20 October 2017.  By its decision dated 3 November 2017, the Board concluded that the applicant failed to establish his case under all the applicable grounds and dismissed his appeal.

8.  The applicant filed a Form 86 and a supporting affirmation on 16 November 2017 to seek leave to judicially review the Board’s decision.  His only ground, as appeared from his affirmation, was that the Board’s decision was unfair.  The Judge considered his application on paper and held that the intended judicial review had no reasonable prospect of success.  She refused the application and gave her reasons at [13] and [14] in the Form CALL-1 dated 19 October 2018, [2018] HKCFI 2155, as follows:

“13. The Adjudicator made it clear to the Applicant the consequences of failing to answer the legitimate concerns of the Board. She had before her all of the papers from the screening interview and considered the matter afresh. The Applicant would have been aware of her concerns and he had the opportunity to answer them if he wished to do so. She did not find the Applicant to be a credible witness. There were a number of inconsistencies in his evidence which she detailed in her decision. His claim was without merit. In fact, it was extremely weak with no prospect of success and she made that clear, as did the Director. I can find no evidence that her approach or reasoning were unfair.”

“14.  Despite the fact that the Applicant did not submit any paper grounds of review, I have considered the papers and grounds, such as they are, carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Adjudicator attempted to engage in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable.”

9.  The Notice of Appeal dated 25 October 2018 gave the following as the ground of appeal:

“My life is danger’s in my origin country that’s why I cannot take risk in my I am also human blood I have also right to living this earth.”

10.  This is not a viable ground of appeal.  In so far as the applicant is contending that he will face risks and danger if refouled, the Judge rightly pointed out that the Board did not find the applicant to be a credible witness.  The Board concluded that the applicant failed to establish that the feared risk or harm was likely to materialise.  In a judicial review, the Court will not embark upon a re-assessment of the evidence, credibility or the risks claimed, which are matters for the Director and the Board, who are the primary decision makers. 

11.  Similarly, the Court of Appeal in hearing an appeal will also not reconsider the assessment of risks made by the primary decision makers.  The focus of an appeal from a refusal of leave to apply for judicial review is on the decision and reasons by the judge.  In the present case, the applicant has not pointed to any error in the Judge’s decision and reasons. There is therefore no proper basis for this Court to interfere with the Judge’s decision.     

12.  For the reasons given above, the appeal has no merits.  Accordingly, we dismiss the appeal.