RE ASIF MUHAMMAD alias CHOUDHRY SOHAIL AHMAD

CACV 131/2019

[2019] HKCA 838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 131 OF 2019

(ON APPEAL FROM HCAL 1264/2018)

-----------------------------------

___________________

J U D G M E N T

___________________

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 8 March 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 13 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 24 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong in around January 2007 illegally.  He was arrested by the police on 16 June 2009.  He lodged a non-refoulement claim on 21 July 2009. 

3.  The applicant’s claim was based on threats from a loan shark who is politically well-connected and on threats from the family of his former girlfriend.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 24 November 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 March 2018, the Board dismissed the appeal on 13 June 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [41] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [53] that there is nothing to suggest that state protection would not be available for the applicant and at [66] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 4 July 2018 which contained no ground for seeking relief.

8.  In the affirmation in support of the leave application dated 4 July 2018, the applicant deposed that:

“I would like to apply my Judicial Review against the Decision of [the Board] with which I am not satisfied. I cannot go back to my home country because my life is in danger back there.”

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 [12] to [16] of the CALL-1 Form:

“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 the decision 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 Re Litoun Mounsy [2018] HKCA 537.

13. The adjudicator had had the benefit of hearing and evaluating the applicant’s testimony and answers to questions put to him at his appeal hearing, and was therefore entitled to arrive at the findings and conclusion of his credibility as a witness and as to his claim as set out in details in paragraphs 31 – 41 of the Board’s decision, in which the applicant has failed to identify any error or procedural unfairness or irrationality. I am therefore unable to see any prospect of success in his intended challenge.

14. Furthermore, the fact that it has been established by both the Director and the Board in their decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. 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.

16. 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 19 March 2019 the applicant advanced the following grounds of appeal:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.”

11.  The applicant agreed by a letter of 19 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 8 April 2019 requiring him to lodge skeleton submissions by 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 that the judge had failed to consider the dangerous situation in Pakistan.  As the judge rightly concluded at [12] of CALL-1 Form, an application for judicial review does not operate as a rehearing of the non-refoulement claim.  15. The judge was therefore not required to assess the alleged danger upon the applicant’s return.  This ground is therefore not a viable ground of appeal.

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