RE YASAR MUMTAZ

CACV 199/2019

[2019] HKCA 1376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 199 OF 2019

(ON APPEAL FROM HCAL 1066 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 an appeal against the decision of Campbell-Moffat J (“the Judge”) set out in the Form CALL-1 dated 12 April 2019 refusing leave to apply for judicial review (“the Judge’s Decision”) [2019] HKCFI 344.  The intended judicial review is against the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 11 December 2017 and the decision of the Director of Immigration (“the Director”) dated 10 August 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  The appeal was listed to be heard on 18 November 2019 and the applicant consented to have the appeal heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 21 October 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 16 September 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 surrendered to the Immigration Department on 4 March 2015 and lodged a non-refoulement claim on 24 June 2015.  He was released on recognizance.  On 7 December 2017, he was arrested by police for several criminal offences and sentenced to 15 months’ imprisonment.

6.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s Decision and paragraphs 2 - 3 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 his three cousins or his cement supplier Aziz Ur Rehman (“Aziz”).  The applicant claimed that he had a cement trading business in his home village.  In around October 2012, his three cousins asked him to supply cements so that they could build a lavish house.  Hence, he sourced cements from Aziz.  The cousins paid him 0.3 million rupees for the cements but the value of the cements soon reached 0.8 million rupees.  He went to the cousins’ place asking for more payment but was assaulted by one of them and some unknown men.  He was also warned with death threats that he should not come for payments again.  The applicant sustained bruises and swellings.  Meanwhile, Aziz had been chasing him for the cements payment.  Later, the same incident happened again – his cousin and six men came to his house and opened fire outside.  The applicant chose to leave his home to another village.  During his time in another village, he heard that Aziz had been hunting him down for payment.  He had no choice but to leave his home country.

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 4 December 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 and dismissed his appeal.

10.  The Board found that, although the applicant claimed to have different political views with the three cousins, he did not assert that the three cousins assaulted him because of the political views.  The dispute between them was private in nature with no state involvement.  Further, the pain suffered by the applicant was not so severe that it amounted to torture (paragraphs 7 - 13 of the Board’s Decision).  In any event, internal relocation was available to the applicant (paragraphs 14 - 18 of the Board’s Decision).  On a separate ground, the Board found that the applicant’s claim would in any event fail because of lack of credibility (paragraphs 31 - 35 of the Board’s Decision).  Thus, the Board dismissed the applicant’s appeal against the Director’s Decision.

The Judge’s Decision

11.  The applicant filed a Form 86 on 13 December 2017 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 but simply stated that he found the Board’s Decision to be unfair and unreasonable.  Further, the applicant did not request an oral hearing before the Judge.  After considering all the documents available to her, 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 - 11 of the Judge’s Decision:

Grounds of review

9.   There were no grounds of review save for the complaint that the decision of the Adjudicator was unfair and unreasonable. He did not say in what way the Adjudicator had acted unfairly or unreasonably. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant 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. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

10.   Despite the fact that the applicant did not submit any formal grounds of review, I have considered the papers and the limited grounds carefully. I have not found any error of law or procedure which would be applicable to this claim on the facts presented. 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 his determination, which was open to him on the facts relied upon by the applicant and reasonable in all the circumstances.

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.”

Grounds for appeal

12.  The applicant filed the Notice of Appeal on 25 April 2019 to appeal the Judge’s Decision.  The grounds of appeal were set down as follows:

“the grounds of this appeal are that the gravity of my circumstances have noted 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.” [sic]

13.  In his supporting affirmation filed on the same date, he stated that there was a good ground of appeal that was not considered by the Judge.  Nevertheless, he did not specify the details.

Discussion

14.  It is trite law that 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: see [14] of Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularities the errors allegedly committed by the Judge.

16.  In the present case, other than making a general and vague complaint that there was a good ground of appeal, the applicant has not in this appeal identified any errors he said to have been committed by the Judge in her reasons.  This is not a viable ground of appeal.

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

Disposition

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