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CACV 169/2021
[2021] HKCA 1276
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 169 OF 2021
(ON APPEAL FROM HCAL 728/2018)
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| RE: |
ALI MUJAHID |
Applicant |
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Before: Hon Barma JA and G Lam JA in Court
Date of Judgment: 14 September 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 8 April 2021 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 20 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 29 September 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Pakistan. He entered Hong Kong on 29 August 2012 illegally and was arrested by the police on 22 November 2012. He lodged a torture claim on 24 November 2012 which was dismissed by the Director on 26 March 2013. The applicant then lodged a claim for non-refoulement protection on 8 April 2013.
3. The applicant claim that he would be harmed or killed by the Muslim community for spreading the Ahmadiyya beliefs. The details of the applicant’s claim have been summarised by the judge at [1] to [4] of the CALL-1 Form.
4. By a Notice of Decision dated 29 September 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] and the persecution risk[3].
5. The applicant appealed to the Board. After a hearing on 13 February 2018, the Board dismissed the appeal on 20 April 2018 (“Board’s Decision”). At [5.15] of the Board’s Decision, the Board found that the applicant was evasive, dishonest and unreliable. The Board found that the applicant failed to establish his case for non-refoulement protection.
The judge’s decision
6. The applicant filed a Form 86 on 26 April 2018 seeking to judicially review the Board’s Decision which contained no ground for seeking relief.
7. In his affirmation in support of the leave application filed on 26 April 2018, the applicant deposed that:
“My life is danger in Pakistan that’s why I cannot take risk in my life.”
8. The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.
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 [10] to [15] of the CALL-1 Form:
“10. On 26 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger in Pakistan and that he cannot risk going back there without putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application. As such I do not find any reasonably arguable basis for his intended challenge.
11. 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.
12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 5.1 – 5.15 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
13. Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, 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. In the Notice of Appeal filed on 15 April 2021, the applicant stated that:
“the Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations”
11. The applicant failed to comply with the direction made by this court on 29 June 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.
12. 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.
13. The hearing date on 30 August 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
14. This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker. On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.
15. The applicant only identified errors allegedly committed by the Board but did not identify any error on the part of the judge and he has therefore failed to advance any viable ground of appeal.
16. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) |
(Godfrey Lam) |
| Justice of Appeal |
Justice of Appeal |
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.
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