RE ABBAS SAFEER

CACV 169/2018

[2018] HKCA 622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 169 OF 2018

(ON APPEAL FROM HCAL 705/2017)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Chung J given on 8 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 20 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 10 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 17 March 2013 and was later arrested by the police on 20 July 2013 for remaining in Hong Kong without permission. After his arrest, he lodged a non-refoulement claim on 11 March 2014. 

3.  According to the applicant, he is a Shia Muslim.  Sometime in 2012 (the applicant’s evidence being inconsistent as to which month), the applicant’s family organized a rally which was part of the religious practice of Shia Muslims.  Some Sunni Muslims asked the participants to stop the rally but the rally continued without any violence.  On the next day, the applicant was stopped by the same Sunni Muslims (two of whom he said were police officers).  They asked the applicant to not participate in or conduct such rallies in the future.  The applicant refused and they beat him with wooden sticks.  The applicant then fled via Bangkok and Guangzhou to Hong Kong.

4.  By a Notice of Decision dated 10 May 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The director’s decision covered the BOR 2 risk^[1], BOR 3 risk^[2], persecution risk^[3], and torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 12 September 2017 the Board dismissed the appeal on 20 September 2017 (“the Board’s Decision”). 

6.  At [27] the Board held that there were “serious concerns that the applicant is not a truthful witness and his claims…have been manufactured”.  At [33] it took the view that the assailants no longer had any reason to continue to find and harass the applicant.  The Board was also satisfied at [35] that state protection was available for the applicant and at [51] that internal relocation was viable. Accordingly, the applicant’s appeal was dismissed.

The judge’s decision

7.  The applicant filed a Form 86 on 3 October 2017.  The Form 86 contained no grounds for seeking relief. 

8.  In the affirmation in support of the leave application dated 3 October 2017, the applicant advanced the following grounds for judicial review:

(1)     there was no basis for rejecting his non-refoulement claim;

(2)     the Board failed to consider the extended form of state acquiescence;

(3)     the Board failed to consider the country of origin reports in assessing the risk of refoulement;

(4)     there was procedural irregularity in that the Board was presided over by someone other than the interviewing officer;

(5)     there was no basis for the Board’s decision that internal relocation was viable.

9.  The applicant did not request an oral hearing before the judge.  The judge decided to deal with the application on paper.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review proceedings to be brought. The judge gave the following reasons for refusing leave at paragraph 10 of the CALL-1 form:

“10. More importantly, none of the materials provided by the applicant to support this application can provide sufficient support of an application of this kind (for instance, para 7(a), (b) and (e) above is extremely general and vague). There is nothing improper on the face of the Director’s decision or the board’s decision. As stated above, the analysis therein was logical (and was adequate). Finally, the matters summarized in para 7(c) and (d) above have no substance at all. In particular, the board has in fact considered the country of origin reports.”

Grounds for appeal

11.  By a Notice of Appeal dated 18 May 2018, the applicant appealed against the judge’s decision.  His ground of appeal was that the judge wrongly concluded that the applicant had been guilty of delay.  The judge ought not to have applied the “time restriction in the current scenario”.However there was nothing in Chung J’s judgment about delay at all.  This indicates that the applicant had not even read Chung J’s judgment at all.

12.  The applicant went on to raise 14 grounds of appeal in his affirmation dated 18 May 2018, none of which had been raised in the Form 86 or its accompanying affirmation.  All 14 grounds of appeal are very general and lack particulars.  The applicant also attached a detailed statement of grounds for application at pp 11-30 of Exhibit ABC to his affirmation.

13.  In those 20 pages, the applicant cited numerous Hong Kong and UK cases, the HKBORO, the Immigration Ordinance and various Internet links to “Pakistan news”.  The applicant did not, however, formulate any coherent argument, whether in the affirmation or Exhibit ABC, as to any alleged error on the part of the judge (or, for that matter, by the Board in coming to its Decision).  At p 31 of Exhibit ABC, there was a completely unparticularized allegation that he was forced to sign a paper without interpretation by an “Officer Owen” and an incoherent allegation of blackmail.  He also stated that his life will be in danger.

14.  The applicant failed to comply with the direction made by this court on 4 July 2018 requiring him to lodge his skeleton submissions by 1 August 2018.

15.  The requirement for lodging skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power by the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing. In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

16.  The hearing date on 11 September 2018 was therefore vacated, and the applicant was debarred from lodging any written submission.  The application was dealt with on paper on the basis of the materials already filed before the court.

17.  The applicant agreed by a letter of 1 June 2018 that the appeal can be heard by two judges.

General principles

18.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 524, CAMP 524/2018 at [14]:

“14. …

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6)     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 this Court 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 stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

19.  Applying the general principles identified earlier in this judgment, we would not allow the applicant to rely on any of the 14 grounds of appeal raised in his affirmation dated 18 May 2018 because all of them are new points raised only at the appeal stage, and not in the court below.

20.  As for the ground raised in the Notice of Appeal, it is apparent that it is inapplicable to the present case.  The judge did not find that there was any delay in the JR leave application.  It is apparent that the Notice of Appeal was copied from another unrelated case, not least because the judge was wrongly referred to as a lady.

21.  The applicant has thus failed to advance any valid ground of appeal and his appeal must therefore be dismissed.

22.  Further, after reading the materials available to us, we are satisfied that the judge’s observations are justified in light of the grounds raised and the materials before him. 

23.  There is no merit in the appeal and we dismiss the appeal accordingly.