RE QASIM MUHAMMAD

CACV 537/2018

[2019] HKCA 399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 537 OF 2018

(ON APPEAL FROM HCAL 239 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an appeal against the decision of Campbell-Moffat J (“the Judge”) refusing leave to apply for judicial review dated 26 October 2018 (“the Judge’s Decision”) [2018] HKCFI 1937.  The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“the Board”) dated 2 February 2018 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated 17 August 2016 (“the Director’s First Decision”) and 28 July 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.  The appeal was listed to be heard on 5 March 2019.  The applicant was directed to lodge three sets of skeleton argument by 4 February 2019 and was 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 22 January 2019.

3.  The requirement for lodging skeleton argument in an appeal is set out in 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 a skeleton argument by the stipulated time, the hearing date was vacated.  We have proceeded to consider this appeal on paper based on the available materials.

Background

5.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 23 June 2007 and was arrested on 29 December 2008.  He was convicted and sentenced to 15 months’ imprisonment on 7 January 2009 and lodged a non-refoulement claim on 14 January 2009.  He was arrested again for taking up unlawful employment on 21 August 2010 and was convicted and sentenced to six months’ imprisonment on 27 September 2010.  He was again released on recognizance on 27 April 2011.

6.  The details of the applicant’s claim and his personal background were set out in paragraphs 26 - 27 of the Director’s First Decision, and paragraphs 1 and 10 - 16 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that if he were to return to Pakistan, his life would be endangered by Muneer Ahmed, also known as Munir (“Munir”), because he had been accused and acquitted of the murder of Munir’s son in an incident in 2008.  The applicant also claimed that he was tortured by the police during the period between 16 August 2005 and 28 August 2005 for that incident.

The Director and the Board’s Decisions

8.  By the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4].

9.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 24 November 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds.  The Board found that there was no credible evidence suggesting that the applicant had suffered ill-treatments or that the Munir family harmed or would harm the applicant.  In addition, the Board found that state protection and internal relocation were available to the applicant (paragraph 36 of the Board’s Decision).  Thus, the Board dismissed the appeal.

The Judge’s Decision

10.  The applicant filed a Form 86 on 13 February 2018 seeking leave to apply for judicial review against the decision of the Director stated to be “dated 23 June 2017 (25 pages in total)” and the decision of the Board stated to be “dated 1 February 2018 (20 pages in total)”.  However, in the accompanying affirmation, the applicant indeed referred to the exhibited Board’s Decision and the Director’s Decisions.  In the premises, the Judge proceeded to consider the leave application based on the Board’s Decision and the Director’s Decision.

11.  In his supporting affirmation the applicant advanced the following grounds of judicial review: (1) the lack of legal representation rendered the procedure unfair; (2) the lack of language assistance rendered the procedure unfair; (3) the Board failed to properly assess his evidence and COI; and (4) the attendance of the Director was wrongly excused from the hearing.

12.  The applicant did not request an oral hearing and thus the Judge proceeded to consider his application on paper.  Having considered the documents in light of the grounds advanced by the applicant, the Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  She set out her reasons in paragraphs 13 - 19 of the Judge’s Decision:

“Leave to apply for judicial review

13. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

14. The Applicant submits that he was treated unfairly by reason of the fact that he was not provided with legal representation before the TCAB. He relies upon the judgment of Saunders J in FB & Ors v Director of Immigration & Secretary for Security HCAL 51/2007. The Applicant submits this is a ‘violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice’. The Applicant has misunderstood the decision of the learned judge. I refer in particular to paragraphs 213 and 216 of the judgment, which read:

‘213. For the foregoing reasons I conclude that by establishing a system in which the petitioner is denied both an oral hearing in respect of his petition and the right to legal representation in the oral hearing, the system does not reach a high standard of fairness. …

216. It does not follow from the conclusion reached in paragraph 213 that every petition will require both an oral hearing or the petition to be represented at that hearing. It will be necessary for the Secretary in each case to have regard to the appropriate relevant considerations and to make an appropriate determination.’

15. The fact the Applicant was unrepresented in his appeal has not been shown to be procedurally or factually unfair. The Applicant was represented before the Director and he had the benefit of an interpreter. Indeed, the Director went to considerable lengths to ensure that the Applicant was properly represented as is evidenced by paragraph 3 above. His claim was fully rehearsed at that stage and he makes no complaint in that respect. His claim upon appeal was a re-hearing of the claim before the Director. He also had the assistance of an interpreter. The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis. The Director of Legal Aid refused the Applicant’s claim for legal aid as he is entitled to do. Nevertheless, the Adjudicator had all of the papers before her as well as the Applicant and he was afforded every opportunity to speak, answer questions and add anything he wished. Throughout the hearing he was asked whether he understood and he claimed that he did. He made no complaint. The Adjudicator, in fact, described him as an intelligent, well-mannered individual and noted that he had thanked the Board for an opportunity to present his case at the hearing. This ground is not reasonably arguable.

16. Also hidden within the affirmation of the Applicant (paragraph 20), appears to be a further complaint that the Adjudicator failed to properly assess the Applicant’s evidence and COI. The Applicant has not stated in what way the Adjudicator did this or how any such failure amounted to a ground for judicial review. I have nevertheless looked very carefully at the procedure, applicable law and reasoning of the Adjudicator and I do not find it wanting. Far from it. This ground is not reasonably arguable.

17. Finally, the Applicant objects to the fact that the Director was not present before the Board and his attendance should not have been excused. He does not explain why the attendance of the Director should have been required and in what way, his non-attendance gives rise to judicial review. The fact is that the Director’s attendance was excused and that it was done so in a procedurally correct manner. That non-attendance did not in any way prejudice the position of the Applicant. There is no merit in this ground.

Conclusion

18. I have considered the papers and grounds 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 Director and the Adjudicator engaged 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 their determinations, which were open to them on the facts and eminently reasonable.

19. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”

Grounds of appeal

13.  The applicant filed a Notice of Appeal dated 30 October 2018 to appeal the Judge’s Decision.  In the Notice of Appeal, the applicant referred to a 3-page handwritten document attached.  He merely repeated the basis of his claim that he would be harmed or killed by Munir and that he was tortured by the police in his home country.  Other than that, he failed to identify any error in the Judge’s Decision.

Discussion

14.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

15.  First of all, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the Board’s Decision afresh as if it is a fresh application for judicial review.

16.  Secondly, 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 the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.  In light of the above, it is thus incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any error in the Judge’s Decision.  There are no viable grounds of appeal.

18.  In any event, we have looked at the decisions of the Board and of the Judge and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions. There is no basis to disturb the Judge’s decision.

19.  The applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.