RE IMRAN KHAN

CACV 64/2019

[2019] HKCA 711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 64 OF 2019

(ON APPEAL FROM HCAL 1020 OF 2018)

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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 an appeal against the decision of Deputy High Court Judge K W Lung (“the Deputy Judge”) set out in the Form Call-1 dated 31 January 2019 refusing leave to apply for judicial review (“the Deputy Judge’s Decision”, [2019] HKCFI 269).  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 24 May 2018 and the decision of the Director of Immigration (“the Director”) dated 2 November 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  The appeal was listed to be heard on 14 May 2019.  The applicant was directed to lodge three sets of skeleton argument by 12 April 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 19 March 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 was arrested by the police for being an illegal immigrant on 15 March 2014.  He lodged a non-refoulement claim on 2 April 2014.

6.  The details of the applicant’s claim and his personal background were set out in paragraphs 6 - 7 of the Director’s Decision and paragraphs 2 and 26 - 28 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that if he were to return to Pakistan, he would be harmed or killed by members of Taliban because he did not give them extortion money.  The applicant claimed that he started receiving phone calls from members of Taliban requesting for extortion money of three million rupees in the summer of 2013.  They threatened the applicant that if he did not pay the money, they would kill his employer.  A few days later, the verbal threats escalated to a physical presence in the applicant’s working place.  The Taliban people threatened to kill the applicant and his employer if they failed to pay the extortion money.  Out of fear, the applicant reported to the police but was told that the Taliban was too powerful for the police to do anything.

The Director’s Decision and the Board’s Decision

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

9.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 12 April 2018, 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 and dismissed his appeal.

10.  The Board found that the applicant was not a reliable witness and gave contradictory and inconsistent statements.  It was of the view that an organization like the Taliban would not accept the excuses from the applicant or his employer for delaying the payment of the extortion money without inflicting any harm.  Thus, the Board did not accept that the applicant or his employer was subjected to extortion and threats of violence either by the Taliban members or anyone else.  Further, the Board did not believe that the Taliban would request the extortion money from the applicant, a junior employee, but not the business owner. (paragraphs 86 - 97 of the Board’s Decision).  In any event, the Board did not accept that the applicant would be at risk of any harm if he were to return to his home country.

The Deputy Judge’s Decision

11.  The applicant filed a Form 86 on 5 June 2018 seeking leave to apply for judicial review against the Director’s Decision and the Board’s Decision.  He also filed a supporting affirmation on the same day.  The Deputy Judge summarized the applicant’s grounds for judicial review at paragraph 10 of the Deputy Judge’s Decision:

“10. ...

a. he did not understand English well and he was not legally represented for the appeal before the Board;

b. there was insufficient assistance to meet the high standard of fairness as set out in Sakthevel Prabakar v Secretary for Security [2004] HKCFA 43; (2004) 7 HKCFAR 187;

c. the Board’s Decision was not translated to him and he did not understand it;

d. the hearing bundle prepared by the Director was without translation and it was only sent to him shortly before the hearing; and

e.   there was no explanation as to how the Director had exercised his balance in relation to the Country of Origin Information for and against his case as he ultimately held against him.”

12.  The Deputy Judge heard the applicant’s leave application on 30 November 2018.  The Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 11 - 20 of the Deputy Judge’s Decision:

“DISCUSSION

The Director’s Decision

11.   In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

12.   Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

13.   For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

14.   It is obvious that the Board disbelieved the applicant’s facts as he alleged. The applicant’s claim therefore has no factual basis in support of his claim.

15.   In the hearing before this Court, the applicant said that he had asked his friend to explain the contents of the hearing bundle to him before the appeal hearing. He had no difficulty in the appeal hearing. His friend had also explained the Board’s Decision to him. He had no complaint against the screening process or the appeal hearing before the Board.

16.   10. a. is his opinion, not substantiated by any fact or evidence. It does not constitute substantiated ground in support of his application.

17.   10. b., c, and d are simply not true as confirmed by the applicant himself in court.

18.   As to 10.e., the Director had considered the Country of Origin Information and made his decision accordingly. It is not necessary for him to explain in his decision how he give weight to the opinions or findings of the various reports. There is no evidence that he had taken into consideration matters which are irrelevant to the issues or that he had not taken into consideration matters which are relevant to the issues, rendering his decision Wednesbury unreasonable. I see nothing amiss in his approach.

19.   Having considered the applicant’s reasons in support of his application, I find that the applicant fails to show that he has reasonable chance in his proposed judicial review.

CONCLUSION

20.   Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

13.  The applicant filed the Notice of Appeal dated 8 February 2019 to appeal the Deputy Judge’s Decision.  He stated that the grounds of appeal would “be provided at a later date”.  However, the applicant has failed to so provide.

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.  Firstly, 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.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  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.

18.  In light of the above, it is thus incumbent on the applicant to point out the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to provide any grounds of appeal to identify any error in the Deputy Judge’s Decision. The appeal must be dismissed on this basis alone.

19.  In any event, we have looked at the Board’s Decision and the Deputy Judge’s Decision 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 Deputy Judge’s Decision.

Disposition

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