SHAH SYED TALAT ABBAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 174/2020

[2021] HKCA 13

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 174 OF 2020

(ON APPEAL FROM HCAL NO 1572 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 9 June 2020^[1]. By his decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. This appeal is dealt with on paper due to the applicant’s failure to lodge a skeleton argument in compliance with the direction given by the Registrar of Civil Appeals as mentioned below.

2.  The applicant is a national of Pakistan.  He is 54 years old.  He came to Hong Kong illegally on 27 July 2013 and surrendered to the Immigration Department on 25 September 2013.  He lodged a non‑refoulement claim on 23 April 2014.  His claim was made on the basis that he would be harmed or killed by two of his customers who had close affiliation with the Muttahida Qaumi Movement, which is influential in Pakistan.

The Director’s decision

3.  By a Notice of Decision dated 20 October 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5].

4.  As the applicant had never been physically assaulted by the two customers, the Director considered that the risk of harm upon the applicant's return to Pakistan is unlikely to be materialized and it was not accepted that the alleged ill-treatments inflicted upon the applicant attained the requisite minimum level of severity.  The Director held that the alleged threats and ill-treatment, even if true, are private in nature.  There is nothing to demonstrate that the applicant has any problem because of his race, religion, nationality or political opinion.  The Director also assessed that the availability of state protection and internal relocation option further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 24 May 2018.  The Board found significant inconsistencies in the applicant’s evidence and the applicant has lack of knowledge of any of the artworks or artists involved in the exhibitions that he claimed to have been involved in for two years.  The Board did not accept that the two men purchased a portrait from the applicant and threatened to harm or kill him.  Thus, the Board held that the applicant’s fears of harm are not well-founded and rejected the appeal on 5 July 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 8 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7.  His ground for his intended judicial review is that the Board disregarded his dangerous situation.

The judge’s decision

8.  The applicant was absent at the hearing before DHCJ K W Lung scheduled on 16 August 2019.

9.  The judge held that there is nothing to show the Board had committed any error in its application of the law to the applicant’s case or in coming to its conclusions on the facts of the case.  As the applicant does not have a reasonable prospect of success in his intended judicial review, the judge dismissed the leave application on 9 June 2020.

Ground of appeal

10.  The applicant stated as his ground of appeal in the notice of appeal that his dangerous situation was disregarded.

Non-compliance with order for lodging of skeleton argument

11.  Directions were given by the Registrar of Civil Appeals on 28 October 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

12.  A notice of hearing dated 11 November 2020 informing the applicant that the appeal was scheduled to be heard on 5 January 2021 was sent to his address by registered post.  The notice was unclaimed and returned to the court.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15).

13.  The applicant failed to lodge a skeleton argument on or before 8 December 2020.  As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By a letter dated 9 December 2020, the court informed the applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. This letter and the earlier letter conveying the Registrar of Civil Appeals’ directions of 28 October 2020 were sent to the applicant by ordinary post. They have not been returned by the Post Office.

Legal Principles

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

16.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

17.  The applicant’s ground is just a bare assertion without elaboration, particulars or evidence in support of his ground of appeal.  In particular, he has not adduced any evidence to rebut the findings of the Board.

18.  He also failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

19.  There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.