RE TALAT ARSLAN

CACV 41/2019

[2019] HKCA 708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 41 OF 2019

(ON APPEAL FROM HCAL 262 OF 2018)

____________________

J U D G M E N T

____________________

Hon Au JA (giving the judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form Call-1 dated 18 January 2019 refusing leave to apply for judicial review (“the Deputy Judge’s Decision”, [2019] HKCFI 162).  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 8 February 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 28 October 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

2.  The appeal was listed to be heard on 14 May 2019.  The applicant was directed to lodge three sets of skeleton argument by 12 April 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 19 March 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 was arrested by the police in Hong Kong for illegally remaining on 9 June 2009 and on 11 June 2009, he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (now refer to as BOR 3 risk^[1] claim), which was dismissed by the Director on 30 May 2013.  On 19 July 2014, he lodged a non-refoulement claim.

6.  The details of the applicant’s claim and his personal background were set out in paragraph 12 of the Director’s Decision, and paragraphs 25 - 52 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that if he were return to Pakistan, he would be harmed or killed by people from the Pakistan People’s Party (“PPP”) and four police constables who would take revenge on him because of his support of the Pakistan Tehreek-e-Insaf (“PTI”).  The applicant claimed that he joined PTI as an ordinary member in 2007 and was responsible for recruiting members for PTI. From 2007 to 2009, he recruited around 450 - 460 people to the PTI.  The applicant claimed that he was assaulted during a riot in 2007 and started to receive threatening telephone calls demanding him to quit PTI and join the PPP due to his fame as a school cricket player in around November 2008.  In December 2008, the applicant received death threats from four police officers and it was the applicant’s belief that the police officers were controlled by PPP and wanted to stop the applicant from assisting the recruitment for the PTI.

The Director’s Decision and the Board’s Decision

8.  By the Director Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk, the persecution risk^[2], the torture risk^[3] and the BOR 2 risk^[4].

9.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 26 October 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 and dismissed his appeal.

10.  The Board refused to accept that the PPP would spend so much manpower and time on the applicant or track him down for the purpose of killing him since the applicant was merely an ordinary member of the PTI.  It found that the PPP had no intention to kill the applicant and that the applicant did not suffer severe injuries during the riot.  The Board did not accept the version of events claimed by the applicant (paragraphs 53 - 80 of the Board’s Decision).  In any event, the Board found that state protection and internal relocation are available to the applicant (paragraphs 81 - 93 of the Board’s Decision).

The Deputy Judge’s Decision

11.  The applicant filed a Form 86 on 21 February 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  He only advanced one ground for his intended challenge which was stated by the Deputy Judge at paragraph 11 of the Deputy Judge’s Decision:

“11. … he was not given any legal representation throughout his appeal/petition before the Board or when the Director determined his claim under BOR 2 risk.”

12.  The Deputy Judge heard the applicant’s leave application on 12 October 2018.  Having considered the documents and hearing the applicant, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons for refusal in paragraphs 12 - 17 of the Deputy Judge’s Decision:

“12.   For such complaint of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar [2004] HKCFA 43; (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas[2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.   The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. In the premises I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

14.   As for his complaint of no legal representation in the Director’s determination of his claim under BOR 2 risk, the applicant is clearly factually incorrect as his claim under BOR 2 risk was determined by the Director together with his BOR 3 and persecution risks when he obviously had legal representation from the Duty Lawyer Service. This complaint of the applicant has no factual basis at all.

15.   Further, the fact is 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 [2012] HKCA 502; [2013] 1 HKC 526.

16.   In the premises and having proceeded to consider 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.

17.   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

13.  The applicant filed the Notice of Appeal dated 30 January 2019 to appeal the Deputy Judge’s Decision.  He referred to a 3-page hand-written “APPEAL GROUND” for his grounds of appeal.  His grounds of appeal could be summarized as follows: (1) he was not given any legal representation before the Board; (2) the refusal to allow the legal representation during the screening interviews with Immigration Department was unfair and unlawful; (3) the failure to provide publically-funded legal representation; (4) the irregularity of the decision-maker being a different person than the interviewing officer; (5) the lack of training of the decision maker and the failure to provide for an oral hearing and representation at an oral hearing; (6) the lack of legal language assistance when filling in the appeal form; and (7) the lack of genuine and proper explanation of the Immigration Department as to why the applicant’s claim under BOR 2 failed.

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.  Firstly, 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.

16.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  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 decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

18.  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 Deputy Judge in assessing the Board’s Decision.  However, the applicant failed to identify any error in the Deputy Judge’s Decision.  The grounds advanced by the applicant in the Notice of Appeal are against the Board’s Decision, which were properly addressed by the Deputy Judge in his reasons.  These are not viable grounds of appeal.

19.  In any event, grounds (1), (2) and (3) relate to the lack of legal representation, which had been dealt with by the Deputy Judge at paragraphs 12 - 14 of the Deputy Judge’s Decision.  We find no errors in the Deputy Judge’s Decision.  In relation to grounds (4), (5), (6) and (7), these grounds were not advanced before the Deputy Judge and cannot therefore be relied upon to demonstrate any errors in the Deputy Judge’s Decision: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

20.  In any event, for Grounds (6) and (7), they are not viable grounds because:

(1)    First, we note that the applicant had hand-written his Form 86, accompanying affirmation and the Notice of Appeal in English. He was able to write in English and also cited legal authorities.  It is clear that either he is reasonably proficient in English or has access to both legal and language assistance.  Thus, Ground (6) fails.

(2)    Second, Ground (7) is also without any merits because the Director had provided a detailed explanation in dismissing the applicant’s BOR 2 risk claim (paragraphs 14 - 30 of the Director’s Decision).

21.  Further, we have reviewed the Board’s Decision and the Deputy Judge’s Decision 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 Deputy Judge’s Decision.

Disposition

22.  For the reasons given above, the applicant’s appeal has no merits at all. Accordingly, we dismiss the appeal.