Re Ahmad Faheem

CACV 272/2019

[2019] HKCA 1067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 272 OF 2019

(ON APPEAL FROM HCAL NO. 801 of 2017)

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J U D G M E N T

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

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 13 June 2019 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 5 September 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 5 May 2016 and 28 April 2017 rejecting the applicant’s non-refoulement claim.

2.The appeal was listed for hearing on 23 September 2019. The applicant was directed to lodge three sets of skeleton argument by 26 August 2019 and also warned that if he failed to do so, he would be deemed to have abandoned 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 a Notice of Hearing dated 25 July 2019.

3.The requirement for lodging skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is essential 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.In the present case, as the applicant had failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated.  The applicant was informed of this by the Court’s letter dated 30 August 2019.  We have proceeded to consider this appeal based on the available materials.  

5.The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 19 January 2014.  On 22 January 2014, he raised a non-refoulement claim on the basis that if he were to return to Pakistan, he would be harmed or killed by two brothers named Shezad and Asbar owing to a land dispute.

6.The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarized by the Judge in [1] to [8] of the Form CALL-1 dated 13 June 2019, [2019] HKCFI 1497.  In brief, the applicant said in about June 2013, after his three maternal uncles turned down his offer to purchase a piece of their land, Shezad became hostile and threatened his uncles.  On one occasion, when one of his uncles was attacked, the applicant came to his help, as a result of which he was also attacked and injured.  The applicant was later arrested by the police based on a false report made by Shezad.  Although the two families eventually resolved the dispute, a few months later, the applicant had another dispute with Asbar, and was attacked by the two brothers.  Fearing for his safety, the applicant left the country for Mainland China from where he came to Hong Kong.

7.By two decisions dated 5 May 2016 and 28 April 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk^[1], BOR 3 risk^[2] and persecution risk^[3] grounds and the further decision covered the BOR 2 risk^[4] ground.

8.The applicant appealed to the Board.  A hearing was held on 10 July 2017, during which the applicant elected not to give evidence and indicated he had nothing to add to his non-refoulement claim form.  By its decision dated 5 September 2017, the Board dismissed the appeal.  The Board considered there was no direct material to enable it to make proper assessment of the credibility of the applicant’s claim, and to determine whether there was any real risk or substantial grounds for believing that he would suffer the harm he claimed to fear.  The Board concluded that the applicant failed to establish a case of non-refoulement on any of the applicable grounds.

9.On 24 October 2017, the applicant filed a Form 86 and an affirmation to apply for leave to judicial review the Board’s decision.  He did not request for an oral hearing, and the Judge dealt with his application based on a consideration of the papers filed.  The Judge was not satisfied that the intended judicial review had prospect of success and refused to give leave for judicial review.  At [14] to [18] of the Form CALL-1, the Judge set out the grounds relied on by the applicant for seeking relief and the reasons for refusing the application as follows:

“14. On 24 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in the Form, nor did he request for any oral hearing, and in his supporting affirmation of the same date he merely deposed that:

‘… I like to tell my true situation of my case and my reason for this application to court. The petition teams appeal (security bureau) never gave me the time to submit my supporting document too, still I have problem to me and for my family by powerful people and my brother was beaten by them and try to kill but he safe his life and taken the treatment from private hospital. I will submit his discharge certificate and other document as soon as possible and I attach my exhibit 91) 1 page with this affirmation to you.’ [sic]

15. The one page of exhibit mentioned in his affirmation is a copy of the letter dated 5 September 2017 from the Board informing him of its decision in dismissing his appeal. Up to now he has not produced or submitted any further documents or representations mentioned in his affirmation which was made some 10 months ago. As such I do not find any substance or merit in the applicant’s complaint nor any reasonably arguable ground put forward by him for his intended challenge in the affirmation or elsewhere in the file.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their roles as primary decision makers in the absence of any legal error being identified by an applicant: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

17. Furthermore, the fact that it has been established 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 area of Pakistan, there is 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 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.”

10.By a notice of appeal dated 24 June 2019, the applicant appealed against the Judge’s decision to this Court.  The applicant stated in the notice of appeal that his application was dismissed without any hearing, but he wanted to explain to the Court that he was married in Hong Kong on 30 January 2019 and his wife was applying for dependant visa for him.

11.In our view, what was stated in the notice of appeal does not amount to viable grounds of appeal for the following reasons:

(1)  Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A provides that the Court may determine an application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application.  As the applicant did not request for an oral hearing in his Form 86, the Judge did not err in not holding an oral hearing to deal with his application. 

(2)  The fact that the applicant had made an application for a dependant visa and the application was pending is irrelevant. This is because in considering the applicant’s application for leave to judicially review the Board’s decision, the Court’s focus is on the legality of the decision and the propriety and fairness of the process by which it is reached.  The Court cannot, and will not, take into account other pending immigration status application made by the applicant.

12.For the above reasons, the appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.