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CACV 586/2020
[2021] HKCA 696
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 586 OF 2020
(ON APPEAL FROM HCAL 1393/2018)
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| RE: |
AWAN TANVEER AHMED |
Applicant |
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Before: Hon Barma JA and Lisa Wong J in Court
Date of Judgment: 21 May 2021
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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 an appeal against the decision of Deputy High Court Judge Bruno Chan given on 16 January 2020 refusing leave to the applicant 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 (“Board”) dated 4 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 17 November 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Pakistan. He had entered Hong Kong on different occasions and three removal orders had been made against him in 1997, 2000 and 2002. He sneaked into Hong Kong without a passport in around February 2012. He was arrested on 26 March 2013 and lodged a non-refoulement claim on 24 January 2014.
3. The applicant’s claim was based on threats from members of an opposing political party. The details of the applicant’s claim have been summarised by the judge at [1] to [6] of the CALL-1 Form.
4. By a Notice of Decision dated 17 November 2017 (“the Director’s Decision”), the director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 16 April 2018, the Board dismissed the appeal on 4 June 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.
6. At [103] of the Board’s Decision, the Board found that the applicant fabricated his claim. The Board was also satisfied at [107] that state protection would be available for the applicant and that internal relocation would be viable.
The judge’s decision
7. The applicant filed a Form 86 on 16 July 2018. He summarized the events giving rise to his claim for protection and submitted that:
“…In the circumstances I feel this is a travesty of justice and contrary of common law and spirit of common humanity and brotherhood to refuse my claim and evict me out of Hong Kong”
8. In his affirmation in support of the leave application filed on 16 July 2018, the applicant simply stated that he wanted to seek leave to apply for judicial review against the decisions by the Director and the Board without giving any ground for judicial review.
9. 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. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [15] of the CALL-1 Form:
“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
13. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.
14. 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.
15. 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.”
Grounds for appeal
10. The applicant was late in bringing the intended appeal. After considering the explanation offered by the applicant and the effect of the pandemic on the operation hours of the court registries, the judge granted extension of time to appeal on 2 November 2020.
11. In the Notice of Appeal filed on 3 November 2020, the applicant contended that:
“On 16 January 2020, the [judge] refused my leave application, which on I apply against the adjudicator of TCAB. Adjudicator decision totally reflect to judge decision.”
12. The applicant agreed by a letter of 3 November 2020 that the appeal could be heard by two judges. The applicant failed to comply with the direction made by this court on 22 February 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.
13. The requirement for lodging of 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 of 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.
14. The hearing date on 10 May 2021 was therefore vacated and the applicant was debarred from lodging any written submissions. We have dealt with the appeal on paper on the basis of the materials already filed with the court.
Discussion
15. The applicant did not provide any details for the sole ground of appeal advanced in the Notice of Appeal, which is not entirely comprehensible. Doing the best we can, it appears that the applicant is complaining about the judge’s decision being a mere reflection of the Board’s Decision and we will proceed on that basis.
16. We note that the applicant did not advance any substantial ground for judicial review before the judge, so there was no issue for the judge to deal with ([11] of CALL-1 Form). The judge nevertheless went on to consider the decisions of the Director and the Board with rigorous examination and anxious scrutiny and concluded that there was no public law error in them ([14] of CALL-1 Form). The judge clearly did not simply follow the Board’s Decision (as alleged by the applicant) and we do not consider that there can be any valid complaint in respect of the judge’s decision.
17. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
(AARIF BARMA)
Justice of Appeal
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(LISA WONG)
Judge of the Court of
First Instance |
The applicant acting in person
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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