RAZA ALI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 304/2020

[2021] HKCA 297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 304 OF 2020

(ON APPEAL FROM HCAL NO 1957 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 July 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 31 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 9 September 2013 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 11 September 2013.

3.  The applicant claimed that a former schoolmate (“K”) or his family will harm or kill the applicant if the applicant returns, due to a fight between them as teenagers at school.  The details of the applicant’s claim have been summarised by the judge at [3] to [7] of the Form CALL-1[1].

4.  By a Notice of Decision dated 16 October 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4], and the torture risk[5].

5.  The applicant appealed to the Board.  After a hearing on 19 April 2018, the Board dismissed the appeal on 31 August 2018 (“Board’s Decision”).  The Board’s Decision covered all four applicable grounds for non-refoulement protection.

6.  The Board found that it was not likely that K or his family would go to great distance to inflict harm on the applicant over a relatively minor matter which occurred years ago.  The Board considered the hearsay evidence relied on by the applicant and held that it was not sufficient to show that K’s parents seriously intended to cause the applicant harm.  The Board therefore found that the applicant was not at risk from any of the proscribed harms.  The Board was also satisfied that there was sufficient state protection and that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a form 86 on 18 September 2018 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 18 September 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [12] of the Form CALL-1:

(1)  lack of legal representation in his appeal before the Board;

(2)  lack of legal assistance for not providing him with language assistance during the process of his appeal to the Board including translating or interpreting the hearing bundle for use in his appeal before the Board;

(3)  that the Board failed to take account properly or at all of the Applicant’s reason for not seeking help from the police of the threats from K’s family in the determination of his claim; and

(4)  that the Director failed to give proper explanation as to how the balancing exercise worked in his consideration of the relevant COI or his conclusion that certain particular sections of the COI outweigh the others.

9.  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 [13] to [21] of the Form CALL-1:

“13. For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

14. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15. As for his complaint under Ground (2) of not being provided with language assistance in his appeal to the Board including translating or interpreting the documents in his hearing bundle for his appeal, it is clear that he was well familiar with most of the documents in the hearing bundle which were earlier already provided to him while he was still legally represented, while his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue with translation or any language problem. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16. Regarding his complaint in Ground (3) about the Board’s doubt over the political influence of Khurram’s father on the local police, on the basis of the facts and the materials before the Board I do not find any fault or error in its such finding of facts. As such and given the personal nature of the Applicant’s claim even on his own case and the Board’s findings and conclusion on state protection and internal relocation being available to him to avoid any such risk from Khurram’s father, I do not find this ground reasonably arguable for his intended challenge.

17. As for his complaint in Ground (4) over the Board’s reliance of the relevant COI in its determination of his claim, again for the reasons of the Board’s findings and conclusions as to the options of state protection and reasonable internal relocation available to the Applicant, I do not find this ground reasonably arguable either.

18. As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19. In the present case, as already noted above the Applicant has failed to clearly and properly identify any error of law or procedural unfairness in his process before the Director or the Board or in their decisions, and as it has also been established by both of them in their decisions 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, there is simply no justification to afford him with non refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20. 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.

21. 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

10.  In the Notice of Appeal dated 27 July 2020, the applicant contended that:

“1. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

2. The Applicant submits that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

3. The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that the applicant has failed to advice any credible evidence to prove material elements of his claim.

4. It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that to when he is in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

5. Surprisingly, the director in his Decision while referring to relevant COI’s kept including meaning which suited his pre-conceived conclusion.  This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.”

11.  The applicant agreed by a letter of 27 July 2020 that the appeal could be heard by two judges. 

12.  The applicant failed to comply with the direction made by this Court on 9 November 2020 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal would be dealt with on the papers in the event of non-compliance.

13.  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.

14.  The hearing date on 1 February 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on the basis of the materials already filed with the Court.

Discussion

15.  The applicant advanced numerous grounds of appeal in the Notice of Appeal against the decisions of the Director and the Board, which did not point to any error on the part of the judge.  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.  Those grounds are therefore not viable grounds of appeal and we would give no weight to those grounds.

16.  The only ground which relates to an error by the judge is contained in the second paragraph of the Notice of Appeal, where it was alleged that the court has failed to take “such argument into account”.  The applicant did not give details for the argument which ought to have been considered by the judge.  If the applicant was referring to the preceding paragraph (i.e. paragraph 1 of the Notice of Appeal related to the treatment of state acquiescence in the Director’s Decision), that ground was likewise deficient in particulars.  In any event, the Board has already dealt with the issue of state acquiescence in [63], [64] and [69] of its decision which overtook the Director’s Decision.

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