NAEEM KASHIF v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 289/2022

[2023] HKCA 115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 289 OF 2022

(ON APPEAL FROM HCAL NO. 65 OF 2019)

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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 by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 15 July 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2157).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 20 December 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 30 January 2018 (“the Director’s Decision”), both rejecting the applicant’s non-refoulement claim.

3.  The appeal was originally listed to be heard on 8 November 2022 and was later refixed to be heard on 24 November 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 11 October 2022 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 14 September 2022.  However, the applicant did not lodge any skeleton argument in support of his appeal.

4.  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 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.

5.  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

6.  The applicant is a national of Pakistan.  He claimed to have entered Hong Kong illegally on 27 January 2016 by boat and on the same day, had surrendered to the Immigration Department for illegal remaining in Hong Kong.  By the written representation dated 27 June 2016, he raised a non-refoulement claim on the basis that he would be harmed or killed by Ali Salman and his people form the Pakistan Muslim League (Noon group) (“PML(N)”) as he supported their rival the Pakistan Tehreek-e-Insaf party (“PTI”).  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] to [5] of the Leave Decision.

7.  By a Notice of Decision dated 30 January 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR 2 risk[2], BOR3 risk[3] and persecution risk[4].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

8.  On 12 February 2018, the applicant appealed against the Director’s Decision to the Board.  The applicant attended the hearing before the Board on 22 October 2018 and an interpreter in the Urdu language was also present to provide language assistance.  Having assessed the evidence, although the Board accepted the applicant’s account that he was threatened and beaten in the 15 days prior to leaving Pakistan, the Board noted that the PML(N) had become the ruling party and the applicant failed to give a cogent explanation for why his enemies would still harm him, in particular when he had not been in Pakistan for more than 2.5 years and that he had relatively low level of involvement in the PTI.  The Board also found that state protection and internal relocation would be available to the applicant.  The Board thus considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, dismissed his appeal on 20 December 2018. 

The Leave Decision

9.  On 8 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  As summarised by the Deputy Judge at [10] of the Leave Decision, the applicant advanced the following grounds in support of his application:-

(1)  That the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim in that their decisions were not reasonable or fair as required by the Wednesbury test that his right to life must be protected by criminal law from extra-judicial killings that he may face if deported to his home country;

(2)  That the Adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)  That the Director failed to appreciate or give proper weight and importance to the presence of state acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim;

(4)  That the Director failed to take into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence before reaching the decision;

(5)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give enough weight to such evidence and ruled otherwise which was a clear case of unfair attitude by the Director which is in itself enough to render his decision void; and

(6)  That the Director failed to apply high standards of fairness in failing to recognize the corruption and incompetency of the administration in the Applicant’s home country is still a serious problem as various human rights organizations had compiled reports which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law.  

10.  On 13 May 2022, the applicant also attended a hearing before the Deputy Judge and an interpreter in Urdu language was present to provide language assistance.  

11.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [11] to [15] of the Leave 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 apply to his case or how the Director or the Adjudicator had erred in their decisions, or what relevancy were state acquiescence or torture be to his claim, or in what way did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give him sufficient time or opportunity to present his evidence in support of his claim or appeal when he never raised any such issues during his appeal hearing before the Board or what evidence that he had wanted to present but was unable to do so before the Board. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. 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.

15.  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.”

The Appeal

12.  On 28 July 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“THE HIGH COURT DISMISSED MY LEAVE BUT DID NOT SHOW ANY GOOD REASON. THE HIGH COURT NOT PAY ANY TIME FOR MY LEAVE. MAY BE COURT DID NOT READ. I DO NOT AGREE WITH HIM. THERE ARE MANY ERROR OF PROCEDING BUT THE COURT NOT SEE.” (sic)

13.  As mentioned above, contrary to this Court’s direction dated 14 September 2022, the applicant failed to lodge any written submissions in support of his appeal.

Discussion

14.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a 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.

16.  In our view, the applicant’s appeal plainly lacks merit and must fail.  The matters raised in his Notice of Appeal are all general and bare assertions without any specific particulars.  He only disagreed with the Deputy Judge but failed to identify any specific error in the Leave Decision.  In any event, it is clear from the Leave Decision that the Deputy Judge had thoroughly considered the grounds as raised by the applicant and had given detailed reasons for rejecting his application.  Accordingly, we see no error and no basis to interfere with the Leave Decision.   

17.  Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.