RE ILYAS ADIL

CACV 143/2018

[2018] HKCA 589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 143 OF 2018

(ON APPEAL FROM HCAL NO. 826 of 2017)

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JUDGMENT

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Hon Chu 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 intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 24 October 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 28 June 2016 and 13 July 2017 rejecting his non-refoulement claim.

2.  The appeal was listed to be heard on 29 August 2018.  The applicant was directed to lodge two sets of skeleton argument by 1 August 2018, and warned that should he fail to do so, the hearing date would be vacated and the appeal would be proceeded on paper based on materials filed in the Court. The direction and the warning were communicated to the applicant in the letter from the court dated 31 May 2018 and the notice of hearing dated 18 July 2018.

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Due compliance with the requirement to lodge skeleton arguments is important for the proper and effective functioning of the appeal process since 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.  This Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement after being warned of the consequence of default, is treated as the abandonment of the right to an oral hearing.  In the present case, as the applicant failed to lodge skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

4.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 10 January 2016.  On 13 January 2016, he made a non-refoulement claim based on his fear that, if refouled to Pakistan, he would be harmed or killed by supporters of the Pakistan Muslim League (Nawaz) (“PML(N)”) because he changed his support to the Pakistan Tehreek-e-Insaf party (“PTI”). 

5.  The facts of the applicant’s claim were set out in details in [23] to [32] of the Board’s decision, and summarised by the Judge in [2] to [4] of the Form CALL-1 dated 27 April 2018, [2018] HKCFI 865 as follows:

“2. The applicant was born and raised in Dhal Mehmood Village, Mirpur, Azad Kashmir, Pakistan where his parents and three younger siblings still live. After completing secondary education in Pakistan, the applicant went on to study business in a university in Cyprus from 2013 to 2015 but was unable to complete his study due to lack of fund. Upon returning to Pakistan in September 2015 he joined his family in their decision to switch their support from PML(N) to PTI despite the fact that most people in their village were supporters of PML(N) and were furious with their decision. The applicant however did not hold any position in PTI.

3. One day in October 2015 the applicant was approached by three supporters of PML(N) who demanded him to rejoin their political party, and when he refused they assaulted him by punching and kicking him until he fell to the ground. As he did not suffer any serious injury, the applicant did not go to any clinic or hospital for any medical treatment, nor did he report the matter to the police.

4. On another occasion in November 2015 the applicant was again assaulted by several supporters of PML(N) who kicked him off his bike and punched and kicked him all over his body before leaving with a warning that if he still refused to give his support to PML(N), they would kill him the next time.  Again the applicant did not seek any medical treatment or go to the police but became concerned for his own safety.  He was then advised by his friend to leave Pakistan to seek asylum in Hong Kong, and with his parents’ support, he left Pakistan on 7 January 2016 first for China, and on 10 January 2016 he sneaked from Shenzhen into Hong Kong where he was subsequently arrested by police and raised his non-refoulement claim with the Immigration Department with legal representation under the Duty Lawyer Service.”

6.  By a Notice of Decision dated 28 June 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], the BOR 3 risk[2] and the persecution risk[3].  On 8 July 2016, the applicant lodged an appeal to the Board against the Director’s decision. 

7.  Meanwhile, by letter dated 23 June 2017, the Director invited the applicant to provide additional facts relevant to an assessment of the BOR 2 risk[4].  Not having received a response from the applicant, the Director proceeded to assess his claim on the basis of the materials already submitted by him.  By a further decision dated 13 July 2017, the Director decided against the applicant on the BOR 2 risk ground.    

8.  On 31 August 2017, the Board heard the applicant’s appeal having regard to all the applicable grounds.  The applicant gave evidence aided by an interpreter.  By its decision dated 24 October 2017, the Board dismissed the appeal.  The Board was of the view that it was plausible that the applicant was caught up in inter-party rivalries and violence in late 2015 in the lead up to the 2016 election.  The Board accepted his account of being attacked by PML(N) supporters on two occasions because they wanted him to support PML(N) and not PTI.  The Board, however, found it was unlikely that he would be of ongoing interest to the PML(N) in his area given they had won 31 out of the 41 seats in the local assembly and PTI only gained two seats.  The Board further considered the applicant could relocate to a city within Pakistan and it would not be unduly harsh for him to do so.  The Board concluded that the applicant failed to establish a claim under the persecution, BOR 3, BOR 2 and torture risks.                    

9.  The applicant filed his Form 86 on 31 October 2017 seeking leave to apply for judicial review against the Board’s decision.    

10.  In his affirmation filed together with the Form 86, the applicant raised eight grounds to support his application, which the Judge summarised as follows (see [10] of Form CALL-1):

(1)   Procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into country of origin information (“COI”) when considering his claim.

(2)   Irrationality in the adjudicator’s failure to take into account, or put proper weight on, the relevant COI, and being selective or reliance on outdated COI.

(3)   Irrationality in the adjudicator’s failure to evaluate or make findings of fact as to whether there exists in Pakistan a consistent pattern of violation of human rights.

(4)   Irrationality in the adjudicator’s failure to analyse or assess whether effective or adequate state protection exists in Pakistan.

(5)   Irrationality in the adjudicator’s taking into account of irrelevant or incorrect considerations not based on facts.

(6)   Procedural impropriety in failing to call for psychological or psychiatric evaluations and reports.

(7)   Procedural impropriety/unfairness in the adjudicator applying the wrong standard of proof.

(8)   Procedural impropriety/unfairness in not being given legal representation.

11.  On the applicant’s request, an oral hearing was held on 28 March 2018.  The Judge refused to give leave to apply for judicial review for the reasons stated in [11] to [15] of the Form CALL-1:

“11. However, all of these grounds appear to me just broad and vague statements devoid of any particulars or specifics from the applicant to show how or in what manner that the adjudicator got it wrong in her assessment of his claim. The first five grounds, for example, all refer to the adjudicator’s improper use of or wrongful reliance on COI or other materials without stating or identifying which particular parts of them were, as alleged by the applicant, outdated or irrelevant. An examination of the COI referred to by the adjudicator in her assessment of the situations of ethnic and political violence in Pakistan show that they were as recent as in 2016 after the applicant’s departure, hence any suggestion that they were outdated is simply groundless, and having read carefully the Board’s decision, I am unable to discern any irrelevant, selective or improper consideration of COI by the Board.

12. As for the complaint of the Board not calling for psychological or psychiatric evaluations or reports, again in the absence of any reason or particulars provided by the applicant and in the absence of any evidence to suggest that he was suffering from any mental problems or incapacity, I do not see any reason or necessity for such evaluations.

13. I also do not find any merit in the applicant’s complaint under ground (7) when the adjudicator did in fact accept his account of being attacked by PML(N) supporters on those two occasions and for being caught up in inter-party rivalries and violence in late 2015 in Azad Kashmir in the lead up to the 2016 election, and that those PML(N) supporters wanted him to support their party and not the PTI. There is simply no merit in this complaint of the applicant, as there was never any issue over the standard of proof as to his claim of harm or ill-treatments from PML(N) supporters that led him to depart Pakistan.

14. As for the remaining ground under ground (8), it is clear that the applicant had had the full benefit of legal representation under the Duty Lawyer Service during the process of his claim before the Director, and in the absence of any specifics from him there is simply no basis for him to complain of lack of or insufficient legal representation.

15.  In the premises and for the reasons given, I do not find any merit in any of the grounds of the applicant for his intended challenge, and having considered the decisions of both the Director and the Board with rigorous and anxious scrutiny, nor do I find any error of law or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  I am therefore not satisfied that there is any prospect of success in his intended application for judicial review, and accordingly I refuse his leave application.”

12.  In the Notice of Appeal dated 8 May 2018, two principal grounds of appeal were advanced:

(1)   The Judge had not dealt with the applicant’s argument that he was only given the hearing bundle and the Director’s revised skeleton submission a few days before the hearing before the Board.  As the majority of the documents were in English, the applicant did not have sufficient time to prepare for the hearing, and he was confused and did not quite understand what was going on.

(2)   It was procedurally unfair for the Board to include the BOR 2 risk ground in the appeal since the applicant had yet to lodge an appeal against the Director’s BOR 2 risk assessment.  The applicant should have been entitled to lodge a separate appeal.      

13.  On the first ground, the applicant’s affirmation in support of the judicial review application had not provided information on what were the documents in the hearing bundle, or the content of the Director’s revised submission.  In the absence of particulars, there was no proper basis for the Judge to assess the complaint of procedural unfairness.  Critically, the applicant did not appear to have raised with the Board the complaint of late provision of hearing bundle and submission and/or his language difficulty.  The applicant was assisted by a Punjabi language interpreter at the hearing before the Board.  He could have requested for more time to consider the hearing bundle and the submission of the Director (whose attendance had been excused), or requested for them to be interpreted to him.  Instead, he proceeded with the hearing and gave evidence before the Board.  The core aspects of his evidence were accepted by the Board (see [8] above).  In the circumstances, the complaint of procedural unfairness cannot stand.

14.  As to the second ground, the Director’s further decision on BOR 2 risk assessment was made before the hearing of the applicant’s appeal against the Director’s first decision on torture, persecution and BOR 3 risks assessment took place.  As an appeal before the Board operated by way of rehearing, the Board acted properly to consider the applicant’s appeal on all applicable grounds, including the BOR 2 risk ground.  There is neither irregularity nor unfairness in the way the Board dealt with the appeal.  This ground also fails.

15.  There is no merit in the applicant’s appeal.  Accordingly, we dismissed the appeal.