RE AQEEL AHMED alias CHOUDHRY AQEEL AHMED

CACV 192/2019

[2020] HKCA 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192 OF 2019

(ON APPEAL FROM HCAL 1077/2017)

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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 an appeal against the decision of Campbell-Moffat J given on 12 April 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) /adjudicator of the Non-Refoulement Claims Petition Office dated 8 March 2017 and 3 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 12 June 2015 and 7 April 2007 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong in around August 2007 illegally and was arrested by the police on 18 June 2008.  He lodged a non-refoulement claim on 30 June 2008. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [5] of the CALL-1 form.

4.  By a Notice of Decision dated 12 June 2015 (“the Director’s First Decision”), 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].

5.  The applicant appealed to the Board.  After a hearing on 30 August 2016, the Board dismissed the appeal on 8 March 2017 (“Board’s First Decision”).

6.  At [39] of the Board’s First Decision, the Board found the applicant dishonest and unreliable.  The Board was also satisfied at [28] that state protection would be available for the applicant and at [23] that internal relocation would be viable.

7.  By a Further Decision dated 7 April 2007, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

8.  On 3 November 2017, the Board dismissed the appeal from the Further Decision.

The judge’s decision

9.  The applicant filed a Form 86 on 14 December 2017 which contained no ground for seeking relief.

10.  In his affirmation in support of the leave application dated 14 December 2017, the applicant advanced the following grounds for judicial review which are summarised below:

(1)  failure to consider the concept of state acquiescence and extended state acquiescence;

(2)  failure to make insufficient enquiry;

(3)  failure to provide sufficient reasons;

(4)  failure to consider country of origin information, or fully consider the report;

(5)  failure to place weight on relevant matters or selectively placed weight on irrelevant matters or inaccurate or incorrect facts;

(6)  failure to consider a consistent pattern of human rights violations;

(7)  failure to consider if state protection exists in India;

(8)  error in placing weight on irrelevant matter, inaccurate or incorrect fact

(9)  failure to call for psychological or psychiatric reports;

(10)  application of the incorrect standard of proof;

(11)  lack of reasonable basis for the rejection of the applicants claim;

(12)  irregularity of the decision-maker being a different person than the interviewing officer; and

(13)  lack of proper basis for the consideration of internal relocation.

11.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

12.  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 [12] to [22] of the CALL-1 form:

“12.  The applicant has not identified any specific procedural irregularity, unfairness or unreasonableness by reference to the Adjudicator’s Decision. He has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. He therefore needs to establish his grounds by reference to the proceedings and the facts. Nothing is gained by simply adopting grounds drafted by someone else who is not even the same nationality as the applicant. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

13.  Based upon the facts of this case, grounds i), vi), vii) and viii) are not triggered upon the facts and are therefore irrelevant and without merit.

14.  As to ground ii) the applicant was invited to attend a hearing on 30 August 2017 in respect of consideration of all matters save for BOR 2. I agree with the Adjudicator that there was no good reason to hold a further hearing for BOR 2. The procedure for the hearing was explained to him. He was invited to answer questions and to add any further information which he wished to add. The Adjudicator was in possession of all relevant documentation, which he read. He noted inconsistencies between his evidence before him and his previous evidence. I can see no other enquiries which he should have made in the circumstances and the applicant has not suggested any. There is no merit in this ground.

15.  As to ground iii), the Adjudicator outlined all available evidence and identified the limitations of it. He explained his reasoning in some detail and commented upon the weakness of the applicant’s case in respect of potential harm. Save for what has already been said about the Adjudicator’s analysis of persecution risk, there is no merit in this ground.

16.  As to ground iv), the Adjudicator clearly did consider the COI. There is no merit in this ground. The applicant has not identified any COI which the Adjudicator should have taken into account and did not.

17.  As to ground v), what matters? It appears from the Decision, that the Adjudicator did establish the facts from the applicant. What facts did he not take into account? What facts did he take into account but in error? Which facts were incorrect? It is for the applicant to look to the Decision and identify where his complaint lies. He is not prejudiced in doing this as it is his case and he was present at the hearing. He is not required necessarily to place a legal label upon it but common sense dictates he should be able to say where he felt the Adjudicator failed to listen or misunderstood.

18.  As to ground ix), there can be no criticism of the application by the Adjudicator of the burden and standard of proof, save for those comments already made in respect of persecution risk which I have referred to elsewhere. For the reasons given here and above, there is no merit in this ground.

19.  As to ground x), the Adjudicator explained his reasoning for rejecting the applicant’s claim and he cannot be criticised for that reasoning. Without more, this court cannot see any merit in this ground.

20.  As to ground xi), the Adjudicator considered relocation. There is no merit in this ground either.

Conclusion

21. I have considered the papers and grounds carefully. I have not found any error of law or procedure save that which has been referred to above. 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. Save for that which has been mentioned at para 10 above, there is no criticism of his determination, which was open to him on the facts and reasonable.

22.  In my judgement, even taking into consideration the views expressed at para 10 above, 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 for appeal

13.  In the Notice of Appeal dated 23 April 2019 the applicant stated that “the gravity of my circumstances have noted (sic) been weighed or realized by both putative Respondents while considering my non-refoulement claim.  I should be given an opportunity to plead my case properly”

14.  The applicant failed to comply with the direction made by this court on 21 May 2019 requiring him to lodge skeleton submissions by 28 days before the hearing, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

15.  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.

16.  The hearing date on 20 August 2019 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

17.  The only ground of appeal is that the applicant was not given an opportunity to plead his case properly and that the Board and the Director failed to appreciate the full gravity of his case.  This ground does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.