RE FAISAL MUHAMMAD

CACV 269/2018

[2018] HKCA 811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 269 OF 2018

(ON APPEAL FROM HCAL NO. 1151 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 Josiah Lam (“the Judge”) given on 12 June 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 21 March 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 22 December 2017 dismissing his appeal against the Director’s decision.  The applicant consents to the appeal being heard by a two-judge court.    

2.  The appeal was listed to be heard on 6 November 2018.  The applicant was directed by the Court to lodge skeleton argument by 12 October 2018, and also warned that should he fail to do so, he shall be deemed to waive his right to have an oral hearing, in which case the hearing date would be vacated and his appeal would be processed on paper.  The direction and the warning were communicated to the applicant in the Notice of Hearing dated 28 September 2018.

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Due compliance with the requirement to lodge skeleton arguments is important for the proper and effective functioning of the appeal process since 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.  This Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement after being warned of the consequence of non-compliance is treated as the abandonment of the right to an oral hearing. 

4.  The applicant did not lodge any skeleton argument by the stipulated time.  The hearing date of the appeal was accordingly vacated, and we have proceeded to consider this appeal based on the available materials before us.

5.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 9 March 2016.  He lodged a non-refoulement claim on 13 March 2016 based on his fear of being harmed or killed by his paternal uncle Haji Riaz, who was a member of the Pakistan Muslim League (Nawaz) (“PMLN”), because he was a supporter of the Pakistan Peoples Party (“PPP”) and his family had a land dispute with him.  

6.  The applicant’s account of events was detailed in the decisions of the Director and of the Board and summarized by the Judge in [3] to [22] of the Form CALL-1 dated 12 June 2018, [2018] HKCFI 1257.  It is not necessary to repeat them here.  

7.  By a Notice of Decision dated 21 March 2017, the Director rejected the applicant’s claim having regard to all the applicable grounds, namely, torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.      

8.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 18 September 2017.  The applicant elected not to give evidence and declined to answer questions from the Board.  By a decision dated 22 December 2017, the Board dismissed the appeal.  The Board considered there were significant problems with his account that required explanation from him.  As he chose to say nothing, the Board was not satisfied that the applicant has discharged his burden of establishing that he faces any risk of harm, now or in the reasonably foreseeable future, if he were refouled to Pakistan.  Having regard to the applicable law and principles, the Board concluded that the applicant failed to establish a case in respect of any of the applicable grounds. 

9.  The applicant filed his Form 86 together with a supporting affirmation on 28 December 2017 seeking leave to apply for judicial review against the decisions of the Director and of the Board.  In [37] and [38] of the Form CALL-1, the Judge summarised the applicant’s grounds in support of the relief claimed to be:

“37.  … the Applicant complained the Director failed to consider properly the issues of state acquiescence and state protection; failed to appreciate the misconduct of the police and law enforcement agencies in his case; failed to properly consider country-of-origin information (“COI”) favourable to him; cherry-picked information; being prejudicial; failed to appreciate the undesirable human rights situation and incompetent administration in Pakistan; failed to attain high standards of fairness; failed to render reasonable decisions.

38.   The Applicant accused the Adjudicator failed to make sufficient enquiry; failed to take account he had limitation in adducing evidence; failed to give him sufficient chance to arrange evidence.”

10.  At the applicant’s request, the Judge heard the leave application at an oral hearing on 18 May 2018.  The Judge was of the view that the intended judicial review had no realistic prospect of success, and refused to give leave to apply for judicial review.  He set out his reasons in [46] to [51] of the Form CALL-1 as follows:

“46. The Applicant’s complaints against the Director and the Adjudicator are vague. He cannot provide particulars in court.

47. The Applicant had been released on recognisance since early April 2016. He had much time and opportunities to prepare his proof to be submitted to the Director and the Adjudicator.

48. The Director found the Applicant's claim lacking in proof in many places. The Adjudicator explained to the Applicant that there were significant problems with his claim. Yet, the Applicant chose not to answer the Adjudicator’s questions.

49. The Director and the Adjudicator each had engaged in sufficient joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. However, he failed to prove his claim before the Director and the Adjudicator.

50. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find no evidence to substantiate any of the Applicant's complaints.

51. The Director and the Adjudicator had given balanced and careful consideration of the Applicant’s claim. They had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. The Director the Adjudicator were acquainted with the facts of the Applicant’s case. They considered the Applicant's case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had each achieved the high standards of fairness required of the Applicant’s non-refoulement claim.”

11.  In his notice of appeal filed on 26 June 2018, the applicant stated, by way of grounds of appeal, that he might be killed if he were refouled to Pakistan.  He asserted there were recently cases of refugees who were killed after being sent back.  The applicant asked the court to reconsider his case and to allow him to stay in Hong Kong.

12.  What the applicant stated does not amount to valid grounds of appeal.  He has not identified any error in the Judge’s decision and reasons.  There is no proper basis for this Court to disturb the Judge’s decision.  Further, the Board, for reasons given in its decision, did not accept that he would face any risk of harm upon return to Pakistan.  This Court has consistently held that assessment of risks is a matter for the Director and the Board, who are the primary decision makers.  The Judge found, and we agree, no discernible error of law or unfairness in the Board’s decision and the process by which it came to its decision.  In the circumstances, there is no basis at all for the applicant’s assertion that he might be killed if refouled to Pakistan.      

13.  We are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.