Re Ali Zulfiqar

CACV 543/2018

[2019] HKCA 411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 543 OF 2018

(ON APPEAL FROM HCAL 64/2018)

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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 Deputy High Court Judge Bruno Chan given on 26 October 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 5 January 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 10 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 14 August 2009 illegally and was arrested by the police on 16 August 2009.  He lodged a torture claim which was rejected on 16 August 2012.  He later lodged a non-refoulement claim. 

3.The applicant’s claim was based on threats from his relatives arising from a land dispute.  The details of the applicant’s claim have been summarised by the judge at [2] to [7] of the CALL-1 Form [2018] HKCFI 2187.

4.By a Notice of Decision dated 10 January 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2] and the persecution risk^[3] (as noted above, the applicant’s torture claim had been rejected by the Director earlier).

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 28 December 2017, the Board dismissed the appeal on 5 January 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [36] of the Board’s Decision, the Board did not accept that the applicant will face any real and personal risk of serious harm upon return.  The Board was also satisfied at [37] that internal relocation would be viable.

The deputy judge’s decision

7.The applicant filed a Form 86 on 12 January 2018 which contained no ground for seeking relief.

8.In the affirmation in support of the leave application dated 12 January 2018, the applicant advanced the following grounds for judicial review which are summarised below:

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

(ii)   lack of language assistance in his appeal before the Board; and

(iii)   wrongful exercise of case management power on the part of the Director for failing to take into account of the relevant COI as to the inefficiency of state protection in Pakistan in the consideration of his claim. 

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 [19] of the CALL-1 Form:

“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 37, 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. 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 before the Board, it is clear that he was assisted by an interpreter at his appeal hearing before the Board, I find this complaint of the applicant simply speculative and without basis.

16. Regarding his complaint under ground (3) of the Director’s failure to take into consideration of the relevant COI as to the inefficiency of state protection in Pakistan, the applicant has failed to provide any particulars or specifics in support of this complaint, and while the COI do show serious problems of police corruptions in Pakistan, they also indicate on-going reforms and improvements with positive results in recent years, and as held by the Court of Appeal, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country, or as in this case of the ineffectiveness of police protection of its citizens in Pakistan, it does not per se constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or persecution upon his return: see Re RS CACV 206/2012, 20 August 2013, and I do not find any basis in this complaint of the applicant either.

17. The fact is that it has been established by both the Director and the Board 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.

18. In the premises and having proceeded to consider 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.

19. 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 5 November 2018 the applicant did not give any ground of appeal.  In the affirmation filed on the same day, the applicant stated that:

“1. [The judge] was wrong in law in holding that there was no state acquiescence or involvement.

2. [The judge] failed to provide detailed reason in support of [his] decision”

11.The applicant failed to comply with the direction made by this court on 18 January 2019 requiring him to lodge skeleton submissions by 15 February 2019, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

12.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.

13.The hearing date on 19 March 2019 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.For the first ground of appeal in the affirmation dated 5 November 2018, the applicant failed to give any particulars of the legal error allegedly made by the judge who dealt with this point at [16] of the judgment.  It is therefore not a viable ground of appeal.  Further, given the finding of the Board that internal relocation was viable, this ground could not result in any change to the outcome of the application.

15.As for the second ground, the judge clearly did give detailed reasons at [13] to [19] of the CALL-1 Form.  This ground is also without merit.

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

The applicant acting in person