Re Akram Muhammad Sufyan

CACV 280/2020

[2021] HKCA 58

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 280 OF 2020

(ON APPEAL FROM HCAL NO. 1828 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 10 July 2020^[1] refusing him leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 16 August 2018 which dismissed his appeal against the decision of the Director of Immigration (“the Director”) of 5 April 2017.  By his decision, the Director had rejected his non-refoulement protection claim on the BOR 2 risk ground.  

2.The applicant has consented to his appeal being heard by two judges of the Court of Appeal. 

3.The appeal is dealt with on paper without a hearing due to the non-compliance with the direction on the lodging of a skeleton argument as mentioned below.

The applicant’s non-refoulement claim

4.The applicant is a national of Pakistan of 35 years old.  He entered Hong Kong illegally and was arrested by the police on 4 September 2009.  He raised a non-refoulement claim on 7 September 2009 on the basis that he will be harmed or killed by a person named Saleem if he returns to Pakistan due to disputes between Saleem’s and his cricket teams.

5.The applicant’s claim was set out in detail in the Director’s decision dated 27 January 2015 at [6], the Board’s decision dated 6 January 2017 at [2] to [3] (which was referred to in the Board’s decision of 16 August 2018) and summarized by the Judge in [4] to [6] in the Form CALL-1.  In gist, the applicant stated that the disputes between the two cricket teams cumulated into a fight that took place in March 2009, during which the applicant was injured in the head.  The incident led to the arrest of six members of Saleem’s team and four of the applicant’s team by the police.  Thereafter Saleem threatened to harm the applicant and did carry out an attack on him in June 2009.  The applicant’s complaint to the police was to no avail as Saleem’s uncle was the most senior officer in the police station.  Fearing danger to his life, the applicant left for Guangzhou from where he sneaked into Hong Kong.

The Director’s decision

6.By a Notice of Decision dated 27 January 2015, the Director rejected the applicant’s non-refoulement claim on the torture risk^[2], BOR 3 risk^[3] and persecution risk^[4] ground.  The Director assessed the risk of harm to be low, and found that state protection was available and internal relocation was viable.

7.The applicant appealed the decision to the Board.  On 6 January 2017, the Board dismissed the appeal.

8.The applicant wrote to the Director to request reconsideration of his claim under the BOR 2 risk^[5] ground.  By letter dated 17 March 2017, the Director invited the applicant to submit additional information relevant to his claim with particular reference to the BOR 2 risk ground.  The applicant did not make any submission to the Director.  By a further decision dated 5 April 2017, the Director determined that the applicant’s claim was not established having regard to the BOR 2 risk ground.    

The Board’s decision

9.The applicant appealed the Director’s further decision to the Board.  The Board decided there was no need to hold an oral hearing as there was no change in the applicant’s case, which had been fully ventilated and dealt with in the earlier appeal to the Board.  By its decision dated 16 August 2018, the Board dismissed the appeal, having found that the applicant failed to establish a case for BOR 2 risk protection. 

The intended judicial review

10.The applicant filed a Form 86 and an affirmation on 4 September 2018 to seek leave to apply for judicial review against the 16 August 2018 decision of the Board.  He put forward these grounds in support of his intended challenge:

(1) The Board did not properly consider his case.

(2) He was not given legal and language assistance in his appeal before the Board.

(3) He did not put in a submission to the Director on the BOR 2 risk ground due to lack of knowledge of the process and the law.  It was unfair that the Director went ahead to make the decision without any submission from him.

The Judge’s decision

11.The Judge heard the leave application at an oral hearing. 

12.By his decision dated 10 July 2020, the Judge held that the intended judicial review has no reasonable prospect of success and refused to give leave to apply for judicial review.  His reasons were set out at [15] to [22] at the Form CALL-1 as follows:

“15. The applicant appeared before me and he confirmed that he was treated fairly when he appeared before the immigration officer. He admitted that he did not answer the Board’s questions. He said that it was the interpreter, who had advised him to do so. He said that he did not tell the Adjudicator what the interpreter had told him.

16. Although the applicant only applies for leave to apply for judicial review of the Board’s Decision, I decide to take into consideration the Board’s Decision dated 6 January 2017 because the Board had to rely upon the facts stated in that Decision for its assessment of the Director’s Further Decision.

17. Ground (1) is his opinion without any evidence or particulars in support of it.

18. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage. Ground (2) and Ground (3) do not sustain.

19. Although he did not respond to the Director’s letter which requested him to provide further information, if any, in support of his claim, including the BOR 2 risk, he had made written submission to the Board before the appeal hearing. The Board had considered his written submission and decided to proceed to assess his appeal on BOR 2 risk without a hearing, which the Board was entitled to do under the law.

20. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

21. I do not believe that the interpreter had advised the applicant not to say anything. This is contrary to the purpose of him appearing before the Adjudicator. He should have explained to the Adjudicator why he did not answer his questions when he was required to answer the questions put to him by the Adjudicator.

22. I find that the applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

The grounds of appeal

13.On 22 July 2020, the applicant filed a Notice of Appeal together with an affirmation to appeal the decision of the Judge.  He stated in the Notice of Appeal that his life is in danger in Pakistan, and he has the right to live. He requested the court to consider his situation and save his life.  His affirmation only exhibited the decision and the order of the Judge. 

Non-compliance with order to lodge skeleton argument

14.Directions were given by the Registrar of Civil Appeals on 3 November 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.  The directions were communicated to the applicant by the court’s letter dated 6 November 2020.

15.The appeal was scheduled to be heard on 14 January 2021.  The Notice of Hearing dated 12 November 2020 reminded the applicant to lodge his skeleton argument by 17 December 2020 and further warned that should he failed to do so he would be deemed to waive his right to have an oral hearing and the hearing date would be vacated with the hearing being determined on paper.

16.The applicant failed to lodge a skeleton argument on or before 17 December 2020.  The hearing date was accordingly vacated.  By letter dated 22 December 2020, the court informed the applicant that the hearing date of 14 January 2021 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

17.The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.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. Assessment of evidence and country of origin information materials and risks of harm, availability of state protection and viability of internal relocation are primarily within the province of the primary decision makers.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board and/or the process by which the decision was made.

19.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 this court to examine the decision of the Board afresh as if it is a fresh application for judicial review. 

Our reasons for decision

20.The matters that the applicant put forward in his Notice of Appeal do not constitute viable grounds to reverse the Judge’s decision.  Importantly, the applicant has not identified any error in the decision and reasons given by the Judge in dismissing his application for leave to apply for judicial review. Assessment of risk of harm is within the province of the Board.  The applicant failed to point to any errors of law or procedural unfairness or irrationality in the decision of the Board.  We agree with the Judge’s conclusion that his intended judicial review has no prospect of success

21.For the above reasons, there is no merit in the applicant’s appeal.  We therefore dismiss the appeal. 

The applicant, unrepresented, acted in person.