RE KHAN RASHID

CACV 366/2019

[2019] HKCA 1378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 366 OF 2019

(ON APPEAL FROM HCAL 131 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 Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 26 July 2019 refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1009.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 16 January 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 June 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 it 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 was arrested in Hong Kong as an illegal immigrant on 31 October 2008.  He lodged a torture claim on 3 November 2008, which was not completed but later was taken to be a non-refoulement claim under the unified screening mechanism.

6.  The details of the applicant’s claim and his personal background were set out in paragraphs 7 - 26 of the Director’s Decision and paragraphs 11 - 21 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that he would be harmed or killed by his political enemies of the Pakistan People’s Party (“PPP”).  The applicant was a supporter of Pakistan Muslim League (Q) (“PML(Q)”).  He had attended several PML(Q) rallies and been promoting the party since 2007.  The PPP leader of the applicant’s home village, Imran, first persuaded him to join the PPP and warned that he should stop supporting the PML(Q).  Upon the refusals of applicant and his friends to join the PPP, several physical scuffles broke out among the members of both parties.  In December 2007, four to five members of PPP came to the applicant’s house under the instructions of Imran to threaten him.  Although the applicant was absent, upon his family’s advice, he left home.  After living in several villages, the applicant eventually fled to Hong Kong.

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’s appeal was heard on 20 November 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 against the Director’s Decision.

10.  The Board found that the applicant was not a credible witness.  His answers appeared to be vague and devoid of supporting details.  His versions of events were contradictory.  In particular, he had provided different names of the local PPP leader that said to have ill-treated him.  Further, the applicant provided information before the Board that he was chased and beaten by PPP supporters while he was away from his home village.  However, such information was not provided before the Director and the Board found it to be a recent invention (paragraphs 65 - 76 of the Board’s Decision).  Thus, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

11.  The applicant filed a Form 86 on 29 January 2018 seeking leave to apply for judicial review against the Board’s Decision.  In his supporting affirmation filed on the same date, he advanced several grounds of appeal that had been summarized by the Deputy Judge at paragraph 10 of the Deputy Judge’s Decision:

“10. On 29 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) irrationality in that the Board failed to consider the concept of state acquiescence;

(2) procedural impropriety in failing to make sufficient inquiry and to provide adequate reasons for its decision;

(3) procedural impropriety/unfairness in failing to investigate the COI of Pakistan;

(4) irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;

(5) irrationality in failing to consider a consistent system of human right violation;

(6) irrationality in failing to consider if state protection exists in Pakistan;

(7) irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8) procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(9) procedural impropriety in applying the incorrect standard of proof; that there was no reasonable basis for rejecting his claim and credibility, failure to consider the extended form of state acquiescence, and failure to fully consider the COI reports in assessing risk to the applicant;

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

(11) no proper basis for consideration of internal relocation.”

12.  The applicant did not request for a hearing before the Deputy Judge.  After considering all the documents available before him, 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 - 17 of the Deputy Judge’s Decision:

11.  These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or what relevancy were the concepts of state acquiescence or extended state acquiescence to his case, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant or inaccurate COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way did the adjudicator apply the wrong standard of proof in assessing his credibility. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not see any basis or merits in any of these complaints, or that any of them can be reasonably arguable in his intended challenge.

12.  As for his complaint that his appeal was heard by a different decision-maker from the Board instead of the same immigration officer, I also fail to see any rationale for insisting that his appeal before the Board be heard by the same immigration officer who had rejected his claim, as the mechanism for his appeal which is a re-hearing of his claim to be before a different person is actually a safeguard for fairness, and I do not see how that can be argued as a valid concern of procedural irregularity in his intended application either.

13.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.

14.  In the applicant’s case, the Board rejected his claim based on its adverse finding on his credibility for the detailed analysis and reasoning set out in §§58 ‑ 76 of its decision after having had the benefit of hearing him in evidence and his answers to questions raised by the adjudicator regarding his claim at his appeal hearing, and in the absence of any legal error or procedural unfairness being clearly and properly shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

13.  The applicant filed the Notice of Appeal on 7 August 2019 to appeal the Deputy Judge’s Decision.  In his grounds of appeal, he argued that the Deputy Judge wrongly exercised his discretion in refusing to grant leave on the basis that “applicant did not give any explanation for the delay. In any case, he had the opportunity of an appeal before the TCAB and he had made use of that channel to challenge the Director’s Decision. Leave to apply for judicial review of the Director’s Decision is refused.” [sic]  He elaborated that any appeals against the Director’s Decision should be dealt with by the Board, which he rightly complied with, but not the high court. Thus, he argued, the Deputy Judge ought to have considered the application procedure and not apply the time restriction in the current scenario.

14.  In his supporting affirmation, he submitted the same grounds as he did before the Deputy Judge.  Apart from these arguments, he did not identify any errors in the Deputy Judge’s Decision.

Discussion

15.  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.  They can be summarized as follows.

16.  First, 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.

17.  Second, 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.

18.  In light of the above, it is thus incumbent on the applicant to point out the errors allegedly committed by the Deputy Judge with sufficient particulars and specifics.

19.  However, it is apparent from the Notice of Appeal that the applicant failed to identify any errors committed by the Deputy Judge.  It is abundantly clear from the Deputy Judge’s Decision that he dismissed the applicant’s leave application on merits but not on the basis of delay as now claimed by the applicant. Therefore, the applicant’s grounds in the Notice of Appeal are misconceived and not viable grounds of appeal.  Further, the grounds advanced in his supporting affirmation were those he argued but failed before the Deputy Judge.  These do not relate to identifying any errors of the Deputy Judge’s Decision.

20.  These are therefore not valid basis which can show that the Deputy Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.

21.  In any event, we have reviewed the Board’s Decisions and the Deputy 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 Deputy Judge’s Decision.

Disposition

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