Re Boota Muhammad

CACV 267/2019

[2019] HKCA 1112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 267 OF 2019

(ON APPEAL FROM HCAL 1664 OF 2018)

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Before:  Hon Barma, Zervos and Au JJA in Court

Date of Judgment:  18 October 2019

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Deputy Judge”) as stated in Form CALL-1 dated 13 June 2019, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 781.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (“the Board”) dated 6 August 2018 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated 20 October 2015 (“the Director’s First Decision”) and 13 December 2016 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.The appeal was listed to be heard on 8 October 2019.  The applicant was directed to lodge three sets of skeleton argument by 10 September 2019 and was warned that if he failed to do so, he would be deemed to have waived his rights to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The directions and the warning were communicated to the applicant by the Notice of Hearing dated 6 August 2019.

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 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.

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 entered Hong Kong illegally on 7 March 2013 and was arrested by the police on the same day.  He lodged a non-refoulement claim on 7 October 2013.

7.The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 4 ‑ 25 of the Board’s Decision.

8.Briefly stated, the applicant claimed that if he were to return to Pakistan, he would be harmed or killed by his uncle Yaseen and Yaseen’s son, Waqas, because of a land dispute.  He said that Yaseen was a supporter of Pakistan People’s Party (“PPP”) which was in power at the time of their dispute.  Yaseen demanded a 50% share of land for Waqas from the applicant’s father.  In June 2012, Yaseen, Waqas and a man came to their home and threatened that they would take the land by force eventually.  In around mid-August 2012, they came to the applicant’s home again and killed his two brothers.  Although the applicant and his father reported the land dispute and the death of the brothers to the police, it was of no avail.  As a result, he fled his home country.

The Director’s Decisions and the Board’s Decision

9.In the Director’s First Decision, the Director assessed the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3].  The Director assessed the BOR 2 risk^[4] in the Director’s Second Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

10.The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 20 April 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

11.The Board found that the applicant’s evidence was incredible and untruthful.  It dismissed the appeal on this ground of credibility (paragraphs 27 ‑ 44 of the Board’s Decision).  Additionally, the Board held that even if it accepted the applicant’s version of events, it would still dismiss the appeal because state protection and internal relocation were available to the applicant (paragraphs 48 ‑ 59 of the Board’s Decision).

The Deputy Judge’s Decision

12.The applicant filed a Form 86 on 17 August 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decisions. The grounds of review were summarized by the Deputy Judge at paragraph 8 of the Deputy Judge’s Decision:

“8. The applicant’s affirmation contains two grounds; he should have been provided with a lawyer and legal representation at his TCAB hearing and secondly the Director did not afford him an interview before rejecting his BOR 2 risk claim.”

13.The applicant did not request an oral hearing.  After considering all the documents available, the Deputy Judge concluded that the application had no reasonably arguable grounds, and refused to grant leave.  She set out her detailed reasons in paragraphs 9 ‑ 14 of the Deputy Judge’s Decision:

“9.  My view is that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only, the applicant has already utilised the channel of appealing the Director’s decisions to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. To seek to judicial review both decision makers is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

10.  The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. The applicant said it was unfair on him; legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed his claim the applicant received no further free legal advice or assistance.

11.  It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held ‘high standards of fairness’ must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as unfair or a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis.

12.  Even if the applicant could apply for leave to apply for a judicial review of the director’s decision as well, the second ground is without merit. In the Director’s notice of further decision dated 13 December 2016, the Director did not receive any reply from the applicant to provide additional materials or facts on a BOR 2 risk claim for the consideration of the Director. He took it that the applicant had no additional information to provide. This meant there was no requirement or need to conduct another interview or hearing; there was no new evidence or submissions.

13.  I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. The same applies to the decision of the Director.

14.  In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds of appeal

14.The applicant filed the Notice of Appeal dated 19 June 2019 to appeal the Deputy Judge’s Decision.  He set out the following grounds of appeal:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation”. [sic]

15.Apart from the bare assertion, the applicant did not identify any errors in the Deputy Judge’s Decision.

Discussion

16.Before considering the merits of the grounds of appeal, it is worth repeating the following now well-established principles.

17.First, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  The primary decision maker to consider whether there was state acquiescence or involvement is the Director and the Board.  The court would and should not usurp the role of the Director or 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.

18.Second, an appeal against refusal of leave for judicial review is not an occasion for the applicants to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Deputy Judge if it could be demonstrated that there were errors in law, that the Deputy Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

19.In other words, the Deputy Judge was not tasked to make primary fact findings of the applicant’s claim, such as the evaluation of risk of harm.  Her responsibility is to examine whether the Board made any errors in assessing the applicant’s case.  It is therefore incumbent on the applicant to point out any alleged errors made by the Deputy Judge in assessing the Board’s Decision with sufficient particularities and specifics.

20.In the present appeal, the applicant failed to identify in his purported grounds of appeal any errors in the Deputy Judge’s Decision.  There are no viable grounds for this court to intervene with the Deputy Judge’s Decision.

21.Moreover, the Deputy Judge in her decision had carefully examined the Board’s Decision and the Director’s Decisions[5] and concluded that their decisions did not commit any public law errors, in that: their decisions did not make any errors of law, were not tainted with any procedural unfairness, and were not Wednesbury unreasonable; and the Director and the Board had also achieved the high standards of fairness required for assessing applicant’s non-refoulement claim.

22.In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s decision.

Disposition

23.For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.