Re Mohammad Arkam

CACV 254/2019

[2020] HKCA 263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 254 OF 2019

(ON APPEAL FROM HCAL 465/2018)

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Before: Hon Cheung JA, Yuen JA and Barma JA in Court

Date of Judgment: 7 May 2020

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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 31 May 2019 refusing leave to the applicant[1] to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 8 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 19 August 2006 illegally and was arrested by the police on 4 September 2006.  He lodged a non-refoulement claim on 22 February 2013. 

3.The applicant’s claim was based on threats from the family of a woman he proposed to.  The details of the applicant’s claim have been summarised by the judge at [2] to [7] of the CALL-1 form.

4.By a Decision dated 24 May 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 5 December 2017, the Board dismissed the appeal on 8 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [44] of the Board’s Decision, the Board held that because of the inconsistencies in the applicant’s evidence, the Board did not accept the applicant’s case. 

The judge’s decision

6.The applicant filed a Form 86 on 22 March 2018 which contained the following grounds for judicial review, summarised below:

(1)  the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim;

(2)  the decisions by the Director and the Board were not reasonable or fair as required by the Wednesbury test;

(3)  their decisions failed to take into consideration of the right to life to be protected from the threat from the family of the woman he proposed to; and

(4)  that the Board failed to give him sufficient time and opportunity to arrange relevant evidence to support his non-refoulement claim and for his appeal.

7.In his affirmation in support of the leave application dated 22 March 2018, the applicant exhibited the relevant documents.

8.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 [17] of the CALL-1 form:

“13. These are however all very broad and vague assertions of the applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable under the Wednesbury test, or why would he face the risk of extra-judicial killings when it was never part of his claim and was never raised before the Director or the Board when his only claim was a private and personal dispute with the family of his former girlfriend. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14. As for his complaint under ground (4) of not being given sufficient time or opportunity to arrange relevant evidence to support his claim in his appeal by the adjudicator, it was never raised in his appeal or at his hearing before the Board, and even in his application now before me or at the hearing he did not produce any further evidence for his claim, nor did he refer to any such evidence or provide any particulars of what further evidence that he wanted to produce. In the circumstances and given the straightforward nature of his alleged threats from KL’s family, and that more than 12 years had passed since the lodging of his claim when he had had ample time to obtain such further evidence if any, I am not at all convinced that there is any merit in this complaint of the applicant.

15. Furthermore, the fact is that it has been established by the Director in his 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, a fact which no doubt the Board would have accepted had it found it necessary to consider that issue as well, there is in my view simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16. 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.

17. 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

9.In the Notice of Appeal dated 12 June 2019 the applicant advanced the following grounds of appeal:

“the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly”

10.In his affirmation of the same day filed in support of the appeal, the applicant advanced the following grounds of appeal, which can be summarised as follows:

(1)  there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review; and

(2)  the Director and the Board did not see the grounds to reverse their decisions.

11.The applicant failed to comply with the direction made by this court on 4 July 2019 requiring him to lodge skeleton submissions 28 days before the hearing, 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 17 September 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.The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Director and the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  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. In any event, having examined the judge’s decision, we can see no error in it.

15.The applicant claimed that there was a good ground of appeal that was not considered by the judge.  However, he did not give any particulars for that ground and it is therefore not a viable ground.

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

The applicant acting in person