Re Naeem Bajwa Muhammad

CACV 162/2020

[2020] HKCA 1074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 162 OF 2020

(ON APPEAL FROM HCAL NO. 2607 OF 2018)

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Before:  Hon Cheung and Au JJA in Court

Date of Judgment:  31 December 2020

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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 KW Lung (“the Deputy Judge”) as set out in the Form CALL-1 dated 28 May 2020, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 964.

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 12 November 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 7 August 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.The appeal was listed to be heard on 3 November 2020 and the applicant consented to have it heard by two judges.  The applicant was directed to lodge two sets of skeleton argument by 6 October 2020 and was warned that if he failed to do so, he would be deemed to have waived 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 the Notice of Hearing dated 8 September 2020.

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 three times using false identities in 2000, 2001 and 2012 respectively.  He was deported back to Pakistan on the previous two occasions.  In his last entry on 21 November 2012, he was arrested by the police, charged and sentenced to 15-month imprisonment.  While he was in the prison, he lodged a non-refoulement claim on 16 September 2013.

7.The details of the applicant’s claim and his personal background were set out at paragraph 6 of the Director’s Decision, paragraphs 29 - 78 of the Board’s Decision and paragraphs 2 - 4 of the Deputy Judge’s Decision.

8.Briefly stated, the applicant claimed that if he was returned to Pakistan, he would be harmed or killed by Saleem Khan (“SK”) and supporters of Pakistan Muslim League (Nawaz) (“PML-N”).  He also claimed that the Pakistani police would prosecute him for framed-up cases.  The applicant claimed to be a supporter of Pakistan Tehreek-e-Insaf (“PTI”).  On the independent day of Pakistan in August 2012, while the applicant and other PTI supporters were preparing the speech, SK and eight to ten people came and assaulted the applicant for assisting the PTI.  The applicant reported to the police but he believed that the police would only safeguard the interest of the ruling party.  In September 2012, he was again threatened by five to six men to stop helping the PTI and, a week later, in a meeting he prepared for the PTI, some PTI supporters came and shot them with pistols.  His brother was injured while the applicant escaped.  He claimed that he could not live in another place in Pakistan as the PML-N supporters were trying to locate him.  Out of fear, he sneaked into Hong Kong for protection.

The Director’s Decision and the Board’s Decision

9.In the Director’s Decision, the Director assessed torture risk[1], the BOR 3 risk[2], the persecution risk[3], and the BOR 2 risk[4]. 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 Decision to the Board.  On 6 September 2018, the Board conducted an oral hearing, during which the applicant answered questions from 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 and dismissed his appeal against the Director’s Decision.

11.The Board found that, despite that some of the applicant’s evidence might be true, there were points that taken together would lead to the incredibility of the applicant’s narrative.  For example, there were several loopholes in the applicant’s claim of being a PTI supporter and that it was implausible of him to forget the clinic he was hospitalized after the alleged assault in 2012.  Further, there were material inconsistences in the applicant’s claims of the shooting incident and the police’s false prosecution against him (paragraphs 115 - 126 of the Board’s Decision).  Alternatively, the Board found that state protection was available to the applicant (paragraphs 145 - 165 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

12.The applicant filed a Form 86 dated 19 November 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  His grounds of review in his supporting affirmation were summarized by the Deputy Judge at paragraph 15 of the Deputy Judge’s Decision as follows:

“15.  In his affirmation in support of his application dated 19 November 2018, the applicant relied upon the following grounds:

(1)  he was not provided with language assistance;

(2)  he was not provided with legal assistance for this application;

(3)  the Director and the Board did not treat the Country of Origin Information (‘COI’) fairly as they did not give sufficient weight to such information that assisted his claim, but just gave weight to the information that held against his claim;

(4)  he considered that the Director was adopting a formula and biased approach to turn down the claims for non-refoulement;

(5)  it was unfair, unreasonable and illogical for the Board to give no weight to his evidence, in particular, his documentary evidence, which in inconsistent with the approach set out in Shafqat Ali v Betty Kwan & Others (unreported, HCAL 74/2012, 17 December 2013), adopting the English authority that the decision-maker must not exclude any matters form its consideration when it was assessing the evidence unless it can safely discard them because it has no doubt that they did not in fact occur;

(6)  he cited an example of the Board giving his reasons in paragraph 70 of its Decision where he said that the Board was unfair in rejecting his claims about the ‘He was reminded that the interpreter would read back the record to him. He explained that the interpreter had only translated in “a short cut”. He was asked since he did not know English, how he knew the interpreter had not fully translated what he had said.’ …

(7)  the Board’s Decision was not translated to him whereas in other cases, there was translation for other claimants, so this is unfair to him; and

(8)  the Director had not set out his explanation as to how he exercised the balancing exercise in considering the COI.”

13.The Deputy Judge heard the applicant’s leave application on 18 April 2019.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his reasons in [16] - [28] of the Deputy Judge’s Decision:

“DISCUSSION

The Director’s Decision

16.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

17.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

18.  The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His friend had explained to him the Hearing Bundle. His friend had also explained the Board’s Decision to him. He considered that he had had a fair hearing before the Adjudicator.

19.  It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

20.  The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

21.  This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

22.  The applicant does not have the absolute right of free legal representation at every stage of the proceedings as he had already had legal representation at the screening stage. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

23.  Grounds (1), (2) and (7) are inconsistent with what he said in court. They are simply not true.

24.  Grounds (3), (4) and (5) are his opinions without any evidence in support of them. They fail.

25.  Ground (6) fails as the applicant is unable to identify in what respect the Board had been followed the approach of the case and caused prejudice to him.

26.  Ground (8) does not sustain because the Director had to apply his commons sense, expertise and experience to make the assessment. The applicant has not even identified in what respect he considered the Director was unfair or illogical in his assessment of the COI.

27.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

28.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

14.The applicant filed the Notice of Appeal on 10 June 2020 to appeal the Deputy Judge’s Decision.  His grounds of appeal could be summarized as: (a) the Director, the Board and the Deputy Judge had failed to appreciate or give the proper importance or weight to the presence of state acquiescence; (b) the Board failed to make sufficient inquiries before finalizing the decision; (c) the Board failed to give the applicant chance to provide relevant evidence; and (d) the Director only made reference to the country of origin information that suited his pre-conceived conclusion.

Discussion

15.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

16.First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an 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 determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.The only ground of appeal against the Deputy Judge was that the Deputy Judge failed to take into account the presence of state acquiescence.  However, as mentioned, the assessment of evidence, including state involvement, was primarily within the province of the Board (and the Director).  The Deputy Judge would not intervene unless there are errors of law, procedural unfairness or irrationality in the Board’s Decision.

21.The Board at paragraph 171 of the Board’s Decision found that the alleged harms suffered by the applicant was not inflicted by, or at the instigation of, or with the consent or acquiescence of the state.  Further, in both the Board’s Decision and the Director’s Decision, they had provided detailed analysis of why state protection was available to the application (see paragraphs 145-165 of the Board’s Decision and paragraph 21 of the Director’s Decision).  The Deputy Judge found that the applicant failed to prove that the Board committed any public law wrong in so finding.  It is simply misconceived to argue that the Deputy Judge failed to take the argument of state acquiescence into account.  This is not a viable ground.

22.The rest of the grounds targeted at the Board and the Director.  They are therefore not viable grounds to challenge the Deputy Judge’s Decision.  In any event, we have reviewed 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.  Accordingly, we dismiss the appeal.

The applicant acting in person