RE RAJA MUHAMMAD ZUBAIR MUKHTAR

CACV 90/2022

[2022] HKCA 1013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 90 OF 2022

(ON APPEAL FROM HCAL 272 OF 2019)

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J U D G M E N T

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Hon B Chu J (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 15 February 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 454).

2.  The intended judicial review is to challenge the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 25 November 2016 and 4 January 2019 (collectively referred as “the Board’s Decisions”) and the decisions of the Director of Immigration (“the Director”) dated 8 May 2015 and 20 January 2017 (collectively referred as “the Director’s Decisions”) rejecting the applicant’s non-refoulement claim.

3.  The appeal was listed to be heard on 6 July 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 8 June 2022 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 10 May 2022.

4.  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 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.

5.  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

6.  The applicant is a national of Pakistan.  On 27 February 1994, the applicant entered Hong Kong and was permitted to remain as a visitor until 13 March 1994.  He was later arrested by the Police for overstaying and was subsequently removed from Hong Kong on 13 July 1995.  On 21 September 2013, he was arrested by the police for remaining in Hong Kong without authority after having landed unlawfully.  By way of the written representations dated 9 October 2013 and 17 October 2013, he then lodged a non-refoulement claim on the basis that he would be harmed or killed by members of Pakistan Muslim League (Noon)(“PMLN”) and related gangsters in his area because he refused to join PMLN and supported Pakistan People’s Party (“PPP”).  The factual details of the applicant’s claim were summarised by the Deputy Judge at [9] of the Leave Decision.

7.  By a Notice of Decision dated 8 May 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all the then applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated.

8.  The applicant lodged an appeal against the Director’s 1^st Decision to the Board and the Board heard the appeal on 28 July 2016.  The applicant was legally represented during the hearing but elected not to testify.  After the hearing, the Board dismissed his appeal on 25 November 2016.  Having considered the evidence, the Board considered that the applicant failed to substantiate his case on all applicable grounds.  The applicant also failed to establish in evidence that he would still be a target of the members of PMLN, and in any event, state protection would be reasonably available to him. 

9.  By a Notice of Further Decision dated 20 January 2017 (“the Director’s 2^nd Decision”), the Director assessed the applicant’s non-refoulement claim on the basis of BOR2 risk[4] and decided against it. 

10.  The applicant then petitioned against the Director’s 2^nd Decision to the Board.  The applicant attended an oral hearing before the Board on 21 November 2018 in person and gave evidence.  On 4 January 2019, the Board dismissed his petition (“the Board’s 2^nd Decision”).  The Board noted that the applicant did not provide further information, facts or materials in respect of his claims and in the hearing confirmed that he was not a criminal or a wanted person in his own country.  He also admitted that he did not face any serious punishment in his own country.  Accordingly, the Board found that the applicant failed to substantiate his non-refoulement claim under BOR 2 and dismissed his petition. 

The Leave Decision

11.  On 29 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Decisions and the Director’s Decisions.  No ground of review was given in his Form 86.  In his supporting affirmation dated 29 January 2019, he advanced the following grounds:

(1)  lack of legal and language assistance and procedural unfairness;

(2)  he was not informed of the reason of the Board’s assessment of his evidence;

(3)  he was unable to determine if the Board had provided adequate reasons; and

(4)  he reserved his right to raise further grounds.

12.  By his written submissions dated 1 June 2021, the applicant further submitted the following:

(5)  Rider (A): the level of threat still exists;

(6)  Rider (B): he is an asylum seeker in fear of domestic violence or sexual assault, if returned to his home country;

(7)  Rider (C): the Board failed to make sufficient enquiry from Pakistan authorities; the Decision was Mallawa because the Board’s finding that the violence was not severe enough to qualify as “torture” was not supported by medical reports; and

(8)  Rider (D): he is telling the truth.

13.  On 25 January 2022, the applicant appeared in person before the Deputy Judge and a Urdu interpreter was also present to provide language assistance.  By way of his further written submissions submitted to the Deputy Judge at the hearing, the applicant advanced the following grounds:

(9)  he had no faith in Pakistan government, there is no justice in Pakistan;

(10)  there are significant changes in circumstances in Pakistan;

(11)  the Director adopted a formula approach to come to the conclusion that state protection is available;

(12)  no assistance was given to him; the Board failed to attain high standard of fairness;

(13)  “True France’s should be beside Messrs. Against the normal standard of substantial Clement.  And note the public.”

(14)  the Board erred in giving no weight to his evidence and dismissing it as hearsay; and

(15)  the Board erred in excluding matters totally from consideration simply because it believed the evidence is fragile.

14.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [22] to [34] of the Form CALL-1.  In essence, the Deputy Judge considered that the grounds raised by the applicant all lacked substance. As the applicant had appealed to the Board, the Director’s Decisions were not susceptible to judicial review. As to the Board’s Decisions, the Deputy Judge noted that there was no error of law, procedural unfairness or Wednesbury unreasonableness in the Board’s Decisions.  The Board had considered the applicant’s evidence and the Country of Origin Information from authoritative and credible sources.  The weight to be given to each piece of evidence was solely a matter for the Board.  There was no substance in his complaints regarding the lack of legal and language assistance, and in any event, the applicant did not suffer any prejudice.    

The Appeal

15.  On 23 February 2022, the applicant filed a Notice of Appeal to appeal and an affirmation in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“I am requested to court I am married in Hong Kong and I am waiting my Independent Visa from Immigration department as a human being could you please give to time I am set my independent visa from department I am also knew this Immigration and department matter and department consideration I could wish court understand my real situation and give to me relife Bundle of thanks.” (sic)

16.  In his supporting affirmation, he stated:

“I am the applicant herein I am requested to Hon. Court could you please safe my life’s my life will be in danger if I return back to Pakistan could you please see the decision from Deputy High Court Judge marked exhibit ‘A’ Total 13 pages ---” (sic)

17.  As noted above, contrary to the directions given by this Court on 10 May 2022, the applicant did not lodge any written submissions. 

Discussion

18.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a 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.

20.  Nowhere in his Notice of Appeal or supporting affirmation did the applicant identify any error made by the Deputy Judge in the Leave Decision. His marriage and his visa application did not relate to his non-refoulement claim or the present appeal. The general and vague assertions of his fear to return to his country of origin do not constitute proper grounds of appeal.  As such, there is simply no viable ground of appeal and the appeal must fail on this basis alone. 

21.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.