RE MOHAMMAD ATTA

CACV 188/2018

[2018] HKCA 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 188 OF 2018

(ON APPEAL FROM HCAL NO. 830 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 18 May 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 20 October 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 2 June 2016 and 1 June 2017 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 25 July 2018.  The applicant was directed to lodge a skeleton argument not less than 28 days before the hearing and also warned that should he fail to do so, the appeal date would be vacated and the appeal would be dealt with on paper.  The direction and the warning were communicated to the applicant in the letter from the Court and the notice of hearing both dated 19 June 2018.

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 material 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 the abandonment of the right to an oral hearing.  In the present case, as the applicant failed to lodge any skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

4.  The applicant is a Pakistani national.  He left Pakistan for Guangzhou on 25 April 2015, and later entered Hong Kong illegally.  He was arrested by the police on 22 October 2015 for the offences of possession of a forged identity card and remaining in Hong Kong illegally.  On 9 December 2015, he lodged a non-refoulement claim based on his fear that, if he returned to Pakistan, he would be subjected to ill-treatment or even life danger posed by a political party, Pakistan Muslim League (N) (“PML-N”). 

5.  The applicant was born and raised in Village Pehti, Tehsil, District Attock, Punjab.  According to the applicant, he and his family were supporters of Pakistan Muslim League (Q) (“PML-Q”).  In the 2013 election, the applicant and his family voted for the candidate of PML-Q for District Attock, Major Tahir, and he also actively canvassed votes for him.  However, the candidate from PML-N won the election and PML-N also became the country’s ruling party.  After the election, supporters of PML-N took revenge and attacked supporters of PML-Q, including the applicant.

6.  The applicant said he met with two attacks.  The first took place in late 2013 during which he was attacked by a group of about 10 PML-N people with wooden sticks.  He sustained bruising and swelling all over his body, for which he received treatment from a local clinic.  Thereafter, he received telephone calls threatening him that he would not be spared for voting for PML-Q.  In the beginning of 2014, the applicant went away to live in Peshawar which was about 6 hours by car from his home village.

7.  In mid-2014 while in Peshawar, the applicant was again attacked by a group of about 12 people, some of whom had taken part in the first attack.  They punched and kicked him, causing him to have two broken teeth and bruises all over his body.  After being hospitalised for two days, the applicant went to Karachi Sindh to stay with his friends.  He did not make any report to the police because he believed they were under the control of the ruling party.    

8.  Then in early 2015, the applicant was arrested and detained by police for possession of 3 kg of heroin, which he said was a false accusation.  His father had to sell his properties to bail him out.  Out of fear of being harmed by PML-N people and of being convicted of the offence, the applicant travelled to Guangzhou on 25 April 2015 on the strength of a Chinese visa, and later took a boat to Hong Kong from Shenzhen. 

9.  By a Notice of Decision dated 2 June 2016, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].  By letter dated 15 May 2017, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk[4]. Not having received a response from the applicant, the Director proceeded to consider the applicant’s claim on the ground of BOR 2 risk based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 1 June 2017, the Director decided against the applicant.

10.  The Board heard the applicant’s appeal against the Director’s decisions on 11 October 2017.  The applicant elected not to give evidence and submitted no document at the hearing.  By its decision dated 20 October 2017, the Board dismissed the appeal.  For the reasons set out in [43] to [48] of the decision, the Board found the applicant’s claim to be based on unsupported and incorrect assertions, such as Major Tahir in fact won the 2013 election in District Attock and he was an independent candidate.  The Board did not accept the applicant had been threatened and assaulted by supporters of PML-N, or falsely accused of possession of dangerous drugs, and rejected his case that he would be harmed or ill-treated if refouled to Pakistan.  That aside, the Board considered that on the applicant’s case, even if true, the threats and assaults did not attain a minimum level of severity of ill-treatment, his injuries did not amount to severe pain and suffering, there was no evidence the threats and attacks were instigated, consented or acquiesced to by the public authorities, and there was no risk of violation to right of life.  The Board further shared the Director’s view that state protection and internal relocation alternatives were reasonably available.  The Board therefore concluded that the applicant failed to make out a claim under all the four applicable grounds. 

11.  The applicant filed his Form 86 on 31 October 2017 seeking leave to apply for judicial review against the Board’s decision.  The applicant’s supporting affirmation filed on the same day advanced the following grounds in support of the relief claimed:

(1) Lack of legal representation in the appeal before the Board.

(2) Lack of language assistance in that he was not provided with a translation of his non-refoulement claim form (“NCF”), thus could not find out if the interpreter had properly translated the basis of his claim.

(3) Wrongful exercise of case management power in rejecting his claim with no reasonable basis.

(4) The hearing was unfair in that the Director was not required to attend and he was not given any chance to provide additional information on the BOR 2 ground.

12.  An oral hearing was held to hear the leave application.  On 18 May 2018, the Judge dismissed the application and gave the following reasons in [12] to [18] of the CALL-1 Form:

“12. For his complaint in ground (1) of not being given 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) 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: see 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 while he was given the opportunity to make further representation to the Board at an oral hearing of his appeal, as noted above he declined to do so or to answer any questions from the adjudicator for the Board. Even at the oral hearing of his leave application before me, all he only stated was that situation back home was still bad and dangerous for him to return to Pakistan. In the premises I do not find anything amiss arising from the lack of legal representation in the appeal process.

14. As for his ground (2) in which he complains of not being provided a translation of his NCF so that he could find out if the interpreter had translated the basis of his claim properly, it is clear that his NCF was completed on his instructions with legal representation and that he was assisted by an interpreter during his appeal hearing before the Board, and in the absence of any particulars or specifics from him to demonstrate that the basis of his claim has indeed been wrongly interpreted, I find this ground of his simply speculative and without any merit.

15. Regarding his [complaint] under ground (3) of the Board rejecting his claim on credibility, it has been well established that the evaluation of evidence is essentially a matter for the Director and the Board who are entitled to do so on the facts and evidence available to them which the court will not usurp their role as the primary decision-makers, and in the absence of any particulars or specifics from the applicant to demonstrate as to how and where the Director or the Board got it wrong either as to facts or evidence in their evaluation, I find there is no basis or merit in this complaint of the applicant either.

16. As for the complaint of his remaining ground over the non-attendance of the Director at his appeal hearing, I fail to see any rationale for insisting the Director’s presence, as the mechanism for the appeal which is a rehearing of the applicant’s claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board. There is simply no merit in this ground.

17. 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.

18.    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.”

13.  In the Notice of Appeal dated 25 May 2018, the following was given as the grounds of appeal:

“The learned judge wrongfully exercised her discreartion in that that leave to apply judicial review of the director decision was refuse because the director decision

Applicant did not give any explanation for the delay. In any case, he had the opportunity of an appeal before the TCAB and he had made use of that channel to challenge the director’s decision. Leave to apply for judicial review of the director’s decision is refused.

By the time the director’s decision was made, I have already lodged the appeal at the Torture Claims Appeal Board (“TCAB”), which was an appeal against their decision under the 3 grounds for non-refoulement, i.e. BOR 3 risk, persecution risk, as well as torture, and not for BOR 2, as it was not one of the grounds under non-refoulement claim at the material time. As per the application procedure, any appeals against decisions made by the Director of Immigration should be lodged at the TCAB, not the High Court.

Having regard to the above circumstances, the learned judge ought to have considered the application procedure and not apply the time restriction in the current scenario.”

14.  Plainly, this set of grounds of appeal has no merits. Apart from being fragmented and unclear in meaning, it bears no relationship to the case at all.  It seems to suggest that the Judge had refused to grant leave to apply for judicial review because the applicant’s application was late. However, neither was the applicant’s application late nor was it refused on the ground of delay.  Further, to the extent it suggests that the applicant’s appeal against the Director’s decision on the BOR 2 risk ground should be placed before the Board, it is misconceived because by the time the Board heard the appeal, the Director had made his decision on the BOR 2 risk ground and the Board determined the appeal on all applicable grounds, including the BOR 2 risk ground. 

15.  Like the Judge, we do not see any error of law or procedure in the decisions of the Director and the Board or any unfairness in the process.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused. 

16.  Accordingly, we dismiss the appeal.