RE MURTAZA ALI

CACV 151/2018

[2018] HKCA 525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2018

(ON APPEAL FROM HCAL 886 OF 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 Deputy High Court Judge Bruno Chan (“the Judge”) given on 27 April 2018 refusing him leave to apply for judicial review. The applicant is a Pakistan national. He entered Hong Kong illegally on 18 December 2013 and was arrested by police on 19 December 2013. He lodged his non-refoulement claim on 21 December 2013. His claim was based on his fear of being harmed, or even killed, by members of the local Pakistan Peoples Party (“PPP”) if he were returned to Pakistan because he and his father are loyal supporters of Pakistan Muslim League (Nawaz) (“the PMLN”)

2.  By the Notice of Decision dated 31 August 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director assessed that, due to the low intensity and low frequency of the ill-treatments, the applicant’s fear would unlikely materialize upon return to Pakistan.  It was also considered that the availability of state protection and the possibility of relocation would lower or negate the perceived risk.  The decision covered the BOR 3 risk, the persecution risk and the torture risk.

3.  By a Notice of Further Decision dated 5 June 2017, the Director also assessed the applicant’s claim in respect of the BOR 2 risk and decided against the applicant.

4.  The applicant appealed to the Torture Claims Appeal Board against the Director’s decisions.  An oral hearing was held on 23 June 2017.  By its decision dated 6 October 2017, the Board agreed with the Director as to his assessment of state protection and internal relocation based on objective COI being available and reasonable to the applicant upon his return to Pakistan.  The Board also took the view that the account given by the applicant was neither convincing nor credible.  It found that the applicant’s account of the key and fundamental issues such as the applicant’s link to PMLN, the attacks by PPP supporters and the plan to flee from Pakistan with his father were contradictory, incoherent and plainly false. The applicant was unable to discharge the burden upon him to establish any of his factual claims and his appeal to the Board was dismissed.

5.  The intended judicial review was in respect of the decision of the Board.  The Form 86 filed by the applicant on 14 November 2017 did not contain any grounds for judicial review.  His affirmation filed on the same day set out four grounds which can be summarized as follows:

(i)  lack of legal representation in his appeal before the Board;

(ii)  lack of assistance for translating his non-refoulement claim form, that he never received the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk hence it was unfair to dismiss his claim under that ground, and that he was not provided any language assistance for his appeal before the Board;

(iii)  wrongful exercise of case management power by the Board for refusing to accept his submitted facts and dismissing his appeal on credibility; and

(iv)  lack of fair hearing for not requiring the attendance of the Director or his representative in his oral hearing before the Board without any proper reasons.   

6.  The Judge heard the application for leave to apply for judicial review on 4 April 2018.  After summarizing the background of the case and giving consideration to the decisions of the Board, the Judge gave his reasons in refusing leave in paragraphs [12] to [18] of the CALL-1 form:

“12. For the applicant’s complaint under ground (1) of not being provided with legal representation at his appeal before the Board, the Court of Appeal has held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 176.

13. The applicant had the benefit of legal representation under the Duty Lawyer Service in presenting his case fully to the Director, and also attended an oral hearing before the Board during he was able to make proper representation of his case in person with the assistance of interpreter and answered questions put to him by the adjudicator for the Board without any difficulty, as he also did before me in his present leave application. I do not see anything amiss arising from the non-availability of legal representation in the process before the Board.

14. As for the complaint under ground (2) of not receiving the letter from the Director inviting him to submit any additional facts relevant to his claim under BOR 2 risk that the applicant was therefore deprived the opportunity to do so, as noted above and assuming indeed the applicant only learnt about the invitation for him to submit additional facts relevant to BOR 2 risk from the Director’s Further Decision of 5 June 2017, some 2 ½ weeks thereafter he attended an oral hearing in his appeal before the Board during which he gave evidence and answered questions from the adjudicator, when he could have made representation about his claim under BOR 2 risk, or to seek time for him to submit additional facts relevant thereto if necessary if indeed it was his wish to do so. Even now in his leave application including attending an oral hearing before me, the applicant did not state or outline any additional facts or submission regarding his claim under BOR 2 risk that he had wished to make but was unable to do so before the Director or the Board, and I do not find any merit in this ground of the applicant for judicial review.

15. For ground (3) regarding the applicant’s credibility, since the adjudicator had as noted above had the benefit of hearing him in evidence at the oral hearing, with detailed findings and reasons given in paragraphs 23 – 36 of the decision, and on the basis of the facts of the case the Board was certainly entitled to reach the decision on the applicant’s credibility as it did, and I do not find any wrongful exercise of the adjudicator’s discretion in rejecting the applicant’s claim on this basis.

16. As for his last ground over the non-attendance of the Director at his hearing before the Board, there is no rule requiring such attendance, and I do not see how any prejudice would be caused to the applicant by the Director’s absence at his appeal before the Board which was, after all, a rehearing of his claim before someone other than the Director whose decision was against him in the first instance and with which he disagreed. There is simply no basis in this ground.

17. 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.

18. 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.”

7.  The applicant lodged his Notice of Appeal on 10 May 2018.  His grounds of appeal may be summarized as follows:

(1)  The Director and the Board failed to determine his case fairly.

(2)  It is “illogical” for the Judge to conclude that the Director and the Board had fairly heard and determined his case.

(3)  The applicant never received the letter from the Immigration Department inviting him to submit additional facts relevant to his claim under BOR2 risk and thus was deprived of the chance to do so. 

(4)  There was no legal assistance and representation to the applicant on his claim of BOR2 risk and the appeal hearing before Board.  The applicant did not understand what BOR2 risk means and how to formulate the grounds of appeal against the decisions of the Director and the Board. 

8.  The applicant agreed by letter dated 18 May 2018 that the appeal can be heard by two judges.

9.  On 14 June 2018, Barma JA gave directions regarding the listing of this appeal, including a direction for lodging a skeleton argument by 19 July 2018.  The requirement for a skeleton argument to be lodged was stated in the Notice of Hearing sent to the applicant the same day. Notwithstanding the direction, the applicant failed to lodge any skeleton argument by the stipulated time.

10.  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.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  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. As no skeleton submissions were lodged as directed, the hearing date was vacated, and we have processed this appeal on paper based on the available material.

11.  The grounds of appeal before us are similar to those deposed to in the applicant’s affirmation filed on 14 November 2017. 

12.  As to ground 1, following the Court of Final Appeal ruling in Sakthevel Prabakar v Secretary for Security [2004] 7 HKCFAR 187 that a high standard of fairness must be observed in the determination of torture claims, the Director introduced the Unified Screening Mechanism (“USM”) for handling torture claims.  The USM process was followed in this case: (i) the applicant was given reasonable opportunity to establish his case at the oral hearings before the Director and the Board; (ii) the Director and the Board had properly heard and considered his case and had taken into account relevant objective COI; and (iii) all the applicable grounds were properly and fairly assessed. 

13.  Further, the Board held that the evidence given by the applicant was not credible as he contradicted himself on the key issues: [35] and [36] of the decision of the Board.  We take the view that the Board was justified in not accepting the applicant’s account.  The Board was also justified in the conclusions on the applicant’s failure in establishing the relevant risks at [37] to [42] of its decision. We do not find any error or unfairness in the process.  In the circumstances, we do not consider ground 1 is arguable. 

14.  We further take the view that the Judge had fully considered the decisions of the Director and the Board and his conclusion is fully justified.  Ground 2 has no merit.

15.  As for ground 3, the applicant’s complaint that he did not receive the letter from the Immigration Department inviting submission of additional facts is without substance.  The Judge had rightly dealt with the complaint in [14] of the CALL-1 Form and we agree with his reasons.  On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk separate from the BOR 3 risk, the torture risk, and the persecution risk.  Ground 3 is devoid of merit.

16.  As for ground 4, the applicant’s complaint about the lack of legal assistance and representation also has no merit.  The applicant had already had the benefit of legal representation before the Director when dealing with his non-refoulement claim.  There is no evidence that the applicant could not seek any legal assistance in respect of his BOR 2 claim.  As we have previously said, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment in FB v Director of Immigration [2009] 2 HKLRD 346 prescribe that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  We do not find anything amiss in his lack of legal representation before Director for determining the claim under BOR 2 risk, and before the Board and the Judge.

17.  Having considered the materials before us, we are satisfied that the Director and the Board had fully reviewed the applicant’s claim.  We cannot find any errors of law or procedure in the proceedings before the Director or the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board.  There is no reasonable basis to challenge the decisions of the Director and the Board.  We take the view that the Judge’s observations in the CALL-1 form are justified and agree with the Judge that leave to apply for judicial review should be refused.

18.  For these reasons, we dismiss the appeal.