RE SHAH JAMAL

CACV 536/2018

[2019] HKCA 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 536 OF 2018

(ON APPEAL FROM HCAL 109 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an appeal against the decision of Campbell-Moffat J (“the Judge”) refusing leave to apply for judicial review dated 19 October 2018 (“the Judge’s Decision”) [2018] HKCFI 1922.  The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“the Board”) dated 23 November 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 21 August 2015 (“the Director’s First Decision”) and 7 June 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.  The appeal was listed to be heard on 5 March 2019.  The applicant was directed to lodge three sets of skeleton argument by 4 February 2019 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 22 January 2019.

3.  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.

4.  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

5.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 13 May 2012 and was arrested on the same day.  He lodged a non-refoulement claim on 15 May 2012.

6.  The details of the applicant’s personal background and his claim were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 20 - 35 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that if he were to return to Pakistan, he would be killed by the members of Taliban because he refused to join them.  He claimed that he was injured by some Taliban members and was hospitalized for 15 days.

The Director and the Board’s Decisions

8.  By the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4].

9.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 31 October 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds.  The Board found that the applicant’s claim in relation to the approach by Taliban members was plausible but not realistic.  It further found that his admission to the hospital was neither plausible nor reasonable. Thus, the Board dismissed the appeal based on the lack of credibility of the applicant’s account (paragraphs 37 - 44 of the Board’s Decision).

The Judge’s Decision

10.  The applicant filed a Form 86 on 23 January 2018 seeking leave to apply for judicial review against the Board’s Decision.  He also filed an affirmation purporting to support the Form 86 application.  He did not state any grounds for judicial review in the Form 86 or the accompanying affirmation.  In the affirmation, he merely stated that the decision was unfair and he was not satisfied with it.  He then recited the basis of his claim that his life would not be safe if he were to return to his home country.

11.  The applicant did not request an oral hearing.  Although the applicant did not state any grounds for judicial review, the Judge had reviewed the papers filed to see if there were any arguable grounds recognised under public law for granting leave to apply for judicial review.  Having considered the documents, the Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  She set out her reasons in paragraphs 9 - 12 of the Judge’s Decision:

“Leave to apply for judicial review

9. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung [2007] HKCFA 77; (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”

Grounds of appeal

12.  The applicant filed a Notice of Appeal dated 30 October 2018 to appeal the Judge’s Decision.  In the Notice of Appeal, the applicant failed to identify any errors in the Judge’s Decision.  He merely stated that he was unable to obtain certain supporting documents for his USM screening and further repeated his claim that it would be dangerous for him to return to his home country.

Discussion

13.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

14.  First of all, 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 Board’s Decision afresh as if it is a fresh application for judicial review.

15.  Secondly, 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, 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, procedural unfairness or irrationality in the decision of the Board.

16.  In light of the above, it is thus incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any error in the Judge’s Decision.  There are no viable grounds of appeal.

17.  In any event, we have looked at the decisions of the Board and of the Judge and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions. There is no basis to disturb the Judge’s decision.

18.  The applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.