RE ALTAF SAQIB

CACV 140/2020

[2020] HKCA 1058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 140 OF 2020

(ON APPEAL FROM HCAL NO. 931 OF 2017)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Campbell-Moffat J (“the Judge”) set out in the Form CALL-1 dated 19 May 2020 refusing him leave to apply for judicial review (“the Judge’s Decision”) [2020] HKCFI 856.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 17 November 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 May 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The appeal was listed to be heard on 3 November 2020 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 6 October 2020 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 8 September 2020.

4.  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.

5.  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.

A.  Background

6.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 21 December 2015 and was arrested on the same date.  He lodged a non-refoulement claim on 24 December 2015.

7.  The details of the applicant’s claim and his personal background were set out in paragraphs 6 - 7 of the Director’s Decision.  The Judge’s summary is at paragraph 4 of her Decision.

8.  Briefly stated, the applicant claimed that if he was returned to Pakistan, he would be harmed or killed by members of Pakistan Muslim League (Nawaz) (“PML(N)”) because he, as a member of Pakistan Tehreek-e-Insaf (“PTI”), refused to join them.  The applicant claimed to have participated in protests against the PML(N) for buying votes during election.  Subsequently, he was threatened by members of PML(N) to stop supporting PTI.  Later, the applicant was attacked in three occasions by three to four PML(N) members.  But he did not report to the police.  The applicant claimed to forget the time when these attacks happened. One month prior to his departure for Hong Kong, he was again attacked by several men who identified themselves as PML(N) members.  The applicant’s brother reported to the police but the police refused to investigate.  Out of fear, he fled to Hong Kong for protection.

B.  The Director’s Decision and the Board’s Decision

9.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3] and the BOR2 risk[4] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

10.  The applicant appealed the Director’s Decision to the Board.  On 25 October 2017, the Board conducted an oral hearing, during which the applicant answered the inquiries from the Board.  After the hearing 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 and dismissed his appeal.

11.  The Board found that the applicant did not adduce credible evidence to support the material events in his claim, such as whether he participated in the protests against PML(N) or whether he had suffered physical injuries of the requisite severity.  In particular, the applicant had failed to recall any exact date of these alleged protests.  Meanwhile, there was no credible evidence suggesting state involvement (paragraphs 32 - 45 of the Board’s Decision).  Taking into account all the evidence, the Board found that the applicant was not a credible witness and dismissed his claim solely on this basis.

C.  The Judge’s Decision

12.  The applicant filed a Form 86 on 22 November 2017 (dated 14 November 2017) seeking leave to apply for judicial review against the Board’s Decision.[5]  He did not request for an oral hearing.  He also did not advance any grounds of review in his Form 86 and supporting affirmation filed on the same date.  After considering the available documents, the Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  She set out the following reasons in paragraphs 10 - 11 of the Judge’s Decision:

“10.  Despite the fact that the applicant did not submit any grounds of review, 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 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 her determination, which was open to her on the facts and eminently reasonable.

11.  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.”

D.  Grounds for appeal

13.  The applicant filed the Notice of Appeal dated 27 May 2020 to appeal the Judge’s Decision.  His grounds of appeal were that:

“1.  The Respondent is in breach of procedural fairness in following parts:

a.  The Respondent had unlawfully fettered his discretion by refusing the appeal on the grounds that they did not satisfy the requirement.

b.  The Adjudicator acted in a procedurally unfair manner in dealing with my appeal;

c.  The Respondent’s decisions to refuse my appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

d.  The Respondent failed to meet the greater care and duty owed to a self-represented claimant;

2.  I am learnt from other persons that when people like me who faces risk to the life in country of origin then they should lodge official torture claim with the Director of Immigration.

3.  I am strongly believe that there was insufficient time for me to prepare for the hearing especially due to my limited skills in English and being unrepresented which is quite apparent to the Director of Immigration.

4.  Due to lack of understanding of what will happen in the hearing since the hearing bundle was not provided earlier or with interpretation, I was confused in terms of what was happening.

5.  However, I answered all the questions with honesty and it aggravates him that my credibility was found questionable. I am strongly believe that it was an unfair hearing due to lack of care by the Torture Claim Board to make appropriate arrangements in relation to the hearing bundle.” [sic]

E.  Discussion

14.  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.

15.  In particular, 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 decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

16.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

17.  Plainly, none of the grounds in the applicant’s Notice of Appeal are against the Judge’s Decision.  Further, none of them were advanced before the Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance (and for which leave has not been sought within time) would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)]. These are therefore not viable grounds of appeal against the Judge’s Decision.

18.  In any event, we have reviewed both the Board’s Decision and the Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s Decision.

F.  Disposition

19.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.