RE BINYAMEEN MUHAMMAD

CACV 521/2018

[2019] HKCA 263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 521 OF 2018

(ON APPEAL FROM HCAL NO. 1159 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 12 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 15 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 29 July 2016 and 5 September 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 30 August 2014.  On 2 September 2014, he raised a non-refoulement claim based on his fear of being harmed or killed by his girlfriend’s family members who are affiliated with the Pakistan People’s Party and connected to a member of the legislative assembly of his home district.

6.  The applicant’s claim was detailed in [6] of the Director’s first decision and [1] of the Board’s decision.  In gist, in 2011 the applicant met and developed a secret relationship with her girlfriend, who was of a higher social status and her family had already made arrangement for her marriage. When their relationship was found out, his girlfriend’s family members threatened and assaulted the applicant and his family, and demanded the applicant to leave the village.  In the following year, the applicant was arrested and detained for raping his girlfriend.  He was later released on condition that he left the village.  He went to stay with his relative and friends.  In June 2014, he was advised by his father to leave the country since his girlfriend’s family was actively locating him. 

7.  By two decisions dated 29 July 2016 and 5 September 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], persecution risk[2] and BOR 3 risk[3] grounds, and the second decision concerned the BOR 2 risk[4] ground.  The Board heard the applicant’s appeal on 1 November 2017, during which the applicant was assisted by an interpreter and he had answered questions put by the Board.  By its decision dated 15 December 2017, the Board dismissed the appeal.

8.  The applicant filed a Form 86 and a supporting affirmation on 29 December 2017 to seek leave to judicially review the Board’s decision.  After considering the paper, the Judge concluded that the intended judicial review had no realistic prospect of success and refused to give leave. The Judge set out the applicant’s grounds for judicial review and the reasons for rejecting them in [11] to [13] of the Form CALL-1 dated 12 October 2018, [2018] HKCFI 1915 as follows:

“11. At first blush, it would appear that the Applicant has submitted 15 grounds of review. However, they can be synthesised into the following complaints:

I. The Adjudicator acted irrationally and/ or unreasonably, in that he:

a. failed to consider the concept of state acquiescence and/or the extended form of state acquiescence;

b. failed to place weight on relevant information;

c. placed weight on irrelevant information, or incorrect or inaccurate facts;

d. failed to consider a consistent system of human rights violations;

e. failed to consider if state protection exists in Pakistan;

f. failed to consider the COI;

g. used an improper basis for consideration of internal relocation;

h. failed to provide adequate reasons; and/or

i. there was no proper basis for rejecting the Applicant’s credibility.

II. There was procedural impropriety in that the Adjudicator;

a. made insufficient enquiry;

b. failed to investigate COI;

c. failed to call for psychological or psychiatric reports;

d. applied the incorrect standard of proof; and

e. the procedure was irregular as the decision maker was not the interviewing officer.

12. There are no particulars provided for any of the Applicant’s grounds [for judicial review]. They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the Applicant and a waste of judicial time. It is incumbent upon the Applicant to make good his grounds, which he has failed to do. Without more, the court is restricted to that which is self-evident from the papers. All of the Applicant's grounds are without merit for the reasons given above.

13. 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.”

9.  The applicant filed a Notice of Appeal together with an affirmation on 16 October 2018.  The notice of appeal gave the following as the ground of appeal:

“My life is danger in my origin country in Pakistan that’s why I cannot go back to Pakistan. As a human [being] I have right to living this earth.”

10.  The affirmation merely exhibited the Form CALL-1, the order of the Judge and the covering letter from the Court when the two documents were sent to the applicant. 

11.  What was stated in the Notice of Appeal 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 Board did not accept there would be a real possibility that the applicant would be tortured, killed or seriously harmed.  In a judicial review, the Court will not embark upon a re-assessment of the evidence or the risks claimed, which are matters for the Director and the Board, who are the primary decision makers. 

12.  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.    

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