Re Akhtar Kamran

CACV 157/2018

[2018] HKCA 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 157 OF 2018

(ON APPEAL FROM HCAL 322/2017)

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Before: Hon Chu JA and Barma JA in Court

Date of Judgment: 28 September 2018

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Chung J given on 2 May 2018 refusing leave 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 dated 17 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 16 April 2015 and 10 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He attempted to enter Hong Kong on 2 February 2015 via Shenzhen.  He was denied entry, and raised a non-refoulement claim on the same day. 

3.According to the applicant, he was an active supporter of Pakistan Muslim League (Quaid-e-Azam Group) (“PML(Q)”).  In early October 2014, a man identified as Chaudhary asked the applicant to join the Pakistan Muslim League-Nawaz (“PML(N)”).  When the applicant refused, Chaudhary and his men attacked the applicant on several occasions.  He decided to flee to Hong Kong.

4.By a Notice of Decision dated 16 April 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.By a Notice of Further Decision dated 10 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 24 October 2016, at which it considered the Director’s First Decision.  Subsequent to the hearing, the Board also considered the applicant’s claim on BOR 2 risk ground on paper. The Board dismissed the appeal on 17 May 2017 (“Board’s Decision”).

7.At [24] and [25] of the Board’s Decision, the Board found that the injury suffered by the applicant did not amount to the level of severity within the meaning of “torture”.  At [32] and [33] the Board held that there was no evidence that the assailants were state actors.  The Board was also not satisfied at [57] that the applicant has shown state protection was not available to him.  At [62] the Board held that, in the light of its conclusions on the other points, it was not necessary to consider internal relocation.

The judge’s decision

8.The applicant filed a Form 86 on 23 June 2017.  The Form 86 contained no ground for seeking relief. 

9.In the affirmation in support of the leave application dated 23 June 2017, the applicant advanced the following grounds for judicial review:

(1) the Board failed to carry out sufficient research and inquiry into the country of origin conditions;

(2) the Board failed to sufficiently take into account, or place proper weight, on relevant country of origin information which was mentioned in the Board’s decision;

(3) the Board failed to evaluate, or make a fact finding regarding the existence of torture and death threats against the applicant;

(4) the Board misdirected itself on the law in failing to consider or assess whether state protection exists;

(5) the interpreter misinterpreted and did not explain the meaning of further and additional information regarding BOR 2 assessment.  The applicant did not receive the Director’s letter inviting additional facts and grounds relating to BOR 2 assessment;

(6) the Board approached the country of origin information selectively and it failed to address the negative aspects of such information; and

(7) because the attackers were members of a very strong political party which has killed many people, it is impossible for the applicant to be safe even if he had relocated.  The Board ought to consider the applicant’s attackers as part of “government officials”.

10.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 grant leave to apply for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [21] of the CALL-1 form:

“10. In coming to the above conclusions, so far as the relevant principles are concerned, the board’s decision has:

(1) set out, or referred to, the relevant statutory provisions and conventions;

(2) relied on some of the relevant principles laid down in earlier decisions;

(3) given reasons for its assessment of the credibility of, or weight to be placed on, various parts of the applicant’s factual case.

11. In relation to the applicant’s contention summarized in para 6(1) to (3) and (6) above, the applicant has not particularized the manner in which allegedly the board has erred (save for making the general complaints summarized above) (such as what would constitute ‘sufficient’ and/or ‘balanced’ independent inquiries, or how the inquiries would affect the outcome of the applicant’s claim).

12. In this connection, I note that, as has been pointed out by the court of appeal in TK v Michael C Jenkins [2013] 1 HKC 526 (at para 19 to 27 thereof), a balanced view has to be taken as regards the notion of ‘procedural fairness’ in this regard (and the applicant cannot ‘simply sit back’ and merely asserts that more should have been done).

13. Further to the above is the fact that, even though the applicant has been afforded a hearing (so that his case could also be presented verbally), for his own reason he decided not to testify before the board.

14. With the above in mind, the board cannot properly be faulted for concluding against him as regards matters like the severity of the assaults, or the credibility (or reliability) of his alleged (perceived) substantial risk of persecution.

15. In relation to the allegation of the board having been ‘selective’ in approaching the country of origin information (para 6(6) above):

(a) it is within the board’s power, as a fact-finding tribunal, to decide whether to place more weight on some of the factual materials and less (or no) weight on other materials. This cannot properly be viewed as being selective (an obvious example of being selective is this: in order to support its conclusion, a tribunal arbitrarily removes from its deliberation unsatisfactory part(s) of a single matter said to be supportive of its conclusion). Here the board was faced with different aspects of the country of origin reports; some parts were favourable to the applicant’s claim while others were unfavourable. In such a case, the board is bound to undertake an evaluation;

(b) the board’s evaluation of the materials before it has not been shown to be unreasonable, or against the overall weight of the evidence.

16. In relation to the alleged misdirection on the law (para 6(4) above), the board’s decision:

(1) has correctly identified and summarized the relevant principles (para 7 and 10 (especially para 10(1) to (2)) above);

(2) has correctly applied the said principles to the materials which the board has accepted (para 11 to 14 above).

(whether as regards ‘state protection’ or other legal issues)

17. In relation to the alleged misinterpretation (para 6(5) above), the assertion is again nonspecific. The applicant asserts that the interpreter never mentioned the torture claim. This is unlikely in view that the board’s decision has devoted about 8 pages (out of about 17 pages) to that aspect.

18. The applicant also asserts that he wrongly thought that there was no need to respond further to a letter from the Director dated 10 April 2017 (with a heading ‘Notice of Further Decision’) (para 6(5) above), but he blamed it on the wrong legal advice given to him. Even if true, that cannot be a matter which the board should be held responsible for.

19. Finally, as regards the applicant’s internal relocation in Pakistan (para 6(7) above), that was not a matter which the board has determined, or relied upon (having rejected the applicant’s claim based on the matters summarized in para 8 to 14 above). Because of the board’s findings (summarized in para 8(1) to (2) and (4) to (5)), whether the applicant’s attackers were ‘government officials’ has no real importance. In any event, the board’s decision has not been shown to be erroneous about that issue either (para 8(1), 9(b), 15(b) and 16(2) above).

Conclusion

20. By reason of the above matters, there is nothing in this application which is worthy of further consideration (the test for determining whether leave to apply should be given is reasonable arguability: Peter Po Fun Chan v Winnie CW Cheung & another (2007) 10 HKCFAR 676, para 15).

21. This application for leave is thus refused.”

Grounds for appeal

11.In the Notice of Appeal dated 15 May 2018 the applicant advanced two broad grounds of appeal:

(1) In relation to [15(a)] of the judge’s decision dated 2 May 2018, the applicant submitted that “[it] would seem clear that the one and only authority who is allowed to make decisions is the board, and no other authorities will be the right channel to appeal against that decision.  The fact that the board is granted such power with minimal capacity of upper courts (or authorities) to hear about its complaints is unfair”.

(2) The Board failed to explain why it placed more weight on COI that are against his case than those that favour his case.

12.The applicant failed to comply with the direction made by this court on 13 July 2018, requiring him to lodge skeleton submissions by 22 August 2018, despite being warned that the hearing date would be vacated and the appeal dealt with on paper 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 20 September 2018 was therefore vacated.  We have dealt with the appeal on paper on the basis of the materials already filed before the court.

General principles

15.Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at [14]:

“14. …

(1) 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 and 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 or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the 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 the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) 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 this Court 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 stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

16.In relation to the first ground, it should be noted that an application for leave for judicial review is not a rehearing and that the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The judge is not required to come to his own view on the COI, as the primary decision maker is the Board.  Though the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  There is no merit in this ground.

17.The second ground complained that the Board did not give reasons for its evaluation of COI.  The Board had in fact given detailed reasons at [34] of the Board’s Decision and the judge explained in [15] of the CALL-1 form why there was no error in the way in which the Board had dealt with the COI.  There is also no merit in this ground.

18.There is thus no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person