RE REHMAN SAQIB

CACV 463/2019

[2020] HKCA 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 463 OF 2019

(ON APPEAL FROM HCAL NO. 1665 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 Woodcock (“the Deputy Judge”) as set out in the Form CALL-1 dated 27 September 2019, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 2146. 

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 26 July 2018 (“the Board’s BOR2 Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 January 2017 (“the Director’s BOR2 Decision”).

3.  The appeal was listed to be heard on 25 February 2020 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 24 January 2020 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 28 November 2019.

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 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.

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.  He entered Hong Kong illegally on 7 March 2009 and was arrested on the same date.  He lodged a torture claim on 10 March 2009 which was subsequently taken to be a non-refoulement claim after 3 March 2014 upon the implementation of unified screening mechanism.

7.  The details of the applicant’s claim and his personal background were set out in paragraphs 4-5 of the Director’s notice of decision dated 12 January 2015 (“Director’s First Decision”).

8.  Briefly stated, the applicant claimed that, if he were to returned to Pakistan, he would be harmed or killed by his parental uncle Abdul Malik (“Abdul”) over a farmland dispute.  The land disputed originated in 2008 when the applicant’s grandfather passed away.  Abdul claimed that he was the eldest son and had contributed the most to the household.  Thus, he was entitled to the farmland.  Although Abdul held the deed of the land, he could not transfer the title legally without the signature of the applicant’s father.  In around January 2009, Abdul assaulted the applicant’s father with a spade during a heated argument.  The applicant did not report this incident to the police as he thought it was just a family dispute.  Nevertheless, the applicant was furious with his father’s injury and went to confront Abdul.  He went into a fight with Abdul and sustained some injuries.  Again, he did not report the incident to the police. A few days later, Abdul and the applicant had another argument, during which Abdul threatened to kill him.  Again, he did not report to the police because he thought that the police would not protect him.  Out of fear, he fled to Hong Kong.

The Director’s First Decision, Director’s BOR2 Decision and the Board’s BOR2 Decision

9.  In the Director’s First Decision, the Director assessed the torture risk^[1], the BOR 3 risk^[2], and the persecution risk^[3]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

10.  The applicant’s appeal against the Director’s First Decision was rejected by the Board on 10 May 2016.  Thereafter, on 11 January 2017, the Director wrote to the applicant and invited him to submit further evidence for the purpose of his BOR2 risk^[4] assessment.  The applicant did not produce any new evidence and his BOR2 risk was assessed by the Director based on the documents previously lodged in support of the non-refoulement claim.  In the Director’s BOR2 Decision, the Director rejected the applicant’s non-refoulement claim on the ground of BOR2 risk.

11.  The applicant lodged a notice of appeal/petition dated 15 February 2017 to the Board, appealing the Director’s BOR2 Decision.  In his petition to the Board, he stated that he was detained and did not receive any letter from the Director.  He also said that he had more information and proof for his claim, which would be provided after his release. 

12.  The Board decided that it was not necessary to hold an oral hearing for this appeal, as the applicant had not provided any further evidence in support of the BOR2 risk claim, despite having already given a chance to do so by the Director.  The Board also was of the view that oral evidence therefore would not advance the applicant’s case, since there was already a hearing in the appeal against the Director’s First Decision which was based on the same underlying facts as alleged by the Applicant.  See paragraphs 5-9 of the Board’s BOR2 Decision.

13.  After considering the relevant legislations, cases and the Board’s findings on 10 May 2016 in the first appeal, the Board rejected the applicant’s appeal against the Director’s BOR2 Decision (paragraphs 10-26 of the Board’s BOR2 Decision).

The Deputy Judge’s Decision

14.  The applicant filed a Form 86 on 17 August 2018 seeking leave to apply for judicial review against the Board’s BOR2 Decision.   As observed by the Deputy Judge, the grounds of review set out in a 19-page document entitled “THE GROUND FOR THE APPLOCATION ARE AS FOLLOWS”[sic] exhibited to his supporting affirmation were lengthy and illogical.  He cited several irrelevant legislations and cases therein.  But the only identifiable grounds for review were those stated at the page numbered 18 of all the exhibits which argued that the Board erred in law (a) in failing to consider relevant evidence; (b) in failing to refer to adverse country of origin information; (c) in failing to consider the lack of protection and threat and hardship faced by Shia Muslims; (d) in finding that the applicant’s enemies did not come within the meaning of populace; (e) in finding when assaults would constitute torture; (f) in improperly rejecting hearsay evidence; (g) in considering the definition of persecution.  The applicant also said the Board’s BOR2 Decision was irrational and tainted with procedural unfairness. 

15.  The applicant did not request an oral hearing before the Deputy Judge.  After considering the documents, the Deputy Judge was satisfied that the Board was correct in not holding an oral hearing.  She found that the applicant’s grounds of review were nonsensical, inapplicable to the Board’s BOR2 Decision, and not reasonably arguable.  Thus, she refused to grant leave with reasons provided at [4]-[9] of the Deputy Judge’s Decision:    

“TCAB decision without a hearing

4. The adjudicator of the TCAB set out a chronology of the applicants claim in his decision. He noted that the applicant had no further information to submit to the Director that related to a BOR 2 risk, in a notice of appeal/petition he had provided nothing in fact or in law which was legally different from or added significantly to what was already in his previous claim or case. This meant that there were no new facts to consider, no issue of law raised or any matter of credibility to resolve. The evidence had not changed nor had the applicant’s case evolved. The adjudicator was of the view that a hearing oral evidence from the applicant would not have advanced his case.

5. The adjudicator considered Article 2 and its subsections. He considered several authorities relating to Article 2. The adjudicator found that the applicant had not shown that there is or will be a necessary and foreseeable breach of his rights protected by BOR 2. There was no evidence showing that the applicant would be at risk of harm from capital punishment inflicted by the government of Pakistan; or face harm from the Pakistani government that would place his life at risk. He noted that the applicant’s claim was that any harm that would have arisen if he had returned to Pakistan came from his uncle because of a family dispute over a piece of land. Even then, the TCAB had rejected his evidence and his credibility after the first oral appeal hearing.

6. The TCAB adjudicator considered the findings of that first appeal decision and found it provided support for stating that it has not been shown that there is or will be a necessary and foreseeable breach of the applicant’s right protected by BOR 2. He concluded that there was no evidence to show that the applicant would be at risk of BOR 2 harm if refouled. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

7. I must consider this application with rigorous examination and anxious scrutiny. The supporting affirmation contains 14 grounds followed by 19 pages of nonsensical statements that purport to be grounds. I cannot decipher how any of the grounds, statements, quotes or comments relate to this adjudicator’s decision to dismiss his appeal/petition against the Director’s decision that the applicant failed to establish a personal and real risk of his absolute and non-wrong double rights under the Hong Kong Bill of Rights being violated, including the right to life under BOR 2 if he were to return to Pakistan.

8. I have considered whether the decision not to conduct an oral hearing was fair and I am satisfied that the adjudicator’s reasons for considering the appeal/petition on the papers are proper and reasonable. There was no new information or facts submitted to support or address a BOR 2 claim, nor was there any issue of credibility that needed to be resolved in an oral hearing.

9. In my judgement, none of the 14 grounds are reasonably arguable. I cannot see any that apply to the adjudicator’s decision. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

16.  The applicant filed the Notice of Appeal on 2 October 2019 to appeal the Deputy Judge’s Decision.  In the grounds of appeal, the applicant stated that the Deputy Judge wrongly exercised her discretion in refusing leave to apply for judicial review against the Director’s decisions.  It was stated in the Notice of Appeal as follows:

“THE LEANED JUDGE WRONGLY EXERICTED HER DISCEARTION IN THAT THAT LEAVE TO APPLY JUDICIAL REVIEW OF THE DIRCTOR, DECISION WAS REFUSE BECAUSE THE DIRECTOR DICISION

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 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.

THE COURT OF FINAL APPEAL HELD THAT THE RIGHT TO FREEDOM FROM "CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT. " [CIDTP] AS ENSHRINED IN ARTICLE 3 OF THE BILL OF RIGHTS CONTAINED IN THE HONG KONG BILL OF RIGHTS ORDINANCE (CAP. 383 OF THE LAWS OF HONG KONG) IS AN ABSOLUTE AND NON-DEROGABLE RIGHT TO WHICH THERE ARE NO EXCEPTIONS.”[sic]

17.  In the supporting affirmation filed on the same date, the applicant repeated the same grounds of challenge he set out in the earlier affirmation filed in support of the Form 86.

Discussion

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

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, 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.

20.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Deputy Judge’s Decision with sufficient particulars and specifics.

21.  As discussed, none of the grounds identified any error in the Deputy Judge’s Decision.  Those stated in the Notice of Appeal do not relate at all to the Deputy Judge’s ruling as quoted above.  Those set out in the affirmation are just a repeat of the grounds of review he sought to raise before the Deputy Judge which were rejected.  None of them point to any error of the Deputy Judge’s Decision.  They are therefore not viable grounds of appeal.  In any event, we have reviewed the Board’s BOR2 Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistakes 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.  Accordingly, we dismiss the appeal.