Ibrar Hussain Shah v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 334/2020

[2021] HKCA 299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 334 OF 2020

(ON APPEAL FROM HCAL NO 2444 OF 2018)

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BETWEEN

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Before:  Hon Barma JA and S T Poon J in Court

Date of Judgment:  17 March 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge KW Lung given on 28 July 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 29 October 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 29 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He claimed to have entered Hong Kong on 23 February 2016 illegally and was arrested by the police on 25 February 2016.  He lodged a non-refoulement claim on 28 February 2016. 

3.The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [4] of the Form CALL-1[1].

4.By a Notice of Decision dated 29 June 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 27 August 2018, the Board dismissed the appeal on 29 October 2018 (“the Board’s Decision”).  Primarily, the Board found that the applicant’s case was not credible.  The Board’s Decision covered all four applicable grounds for non-refoulement protection.

The judge’s decision

6.The applicant filed a form 86 on 2 November 2018 which contained no ground for seeking relief.

7.In his affirmation in support of the leave application dated 2 November 2018, the applicant deposed that:

“…I do not agree with the Adjudicator’s Decision…my life in danger in my home land I do not want to go back. Kindly look my case and grant my stay here…” (sic)

8.In Exhibit A attached to his affirmation dated 2 November 2018, the applicant recounted the alleged events which led to his claim and contended that:

(1)  A number of politically influential people will harm the applicant upon his return;

(2)  There is substantial ground to believe that his claim was neglected by the Board;

(3)  The applicant did not understand any language other than Urdu and Punjabi.  He also did not receive much education;

(4)  The Director and the Board failed to conduct inquiries from reliable sources and “did not fully study the ground realities of [his] case and aftermath in case [he is] forced to return to [his] home town”;

(5)  The Board refused his appeal without any reasonable ground; and

(6)  It is impossible for the applicant to safely relocate in Pakistan.

9.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 to apply for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [17] of the Form CALL-1:

“13. The applicant appeared before me and he confirmed that he was free to present his case before the immigration officer and the Adjudicator of the Board. He understood the Director’s Decision and the Board’s Decision. He said that he respected the Adjudicator and he did not want to pass any comment on him. He simply wanted to tell me that he was suffering.

14. The Board rejected his evidence. He simply has no factual basis in support of his claim.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

‘13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.’

16. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

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

Grounds for appeal

10.In the Notice of Appeal dated 10 August 2020, the applicant contended that:

“The Honourable Judge of the High Court refused my leave to apply for judicial review against the Adjudicator TCAB Decision. I am not agree with his judgment. I could not find any difference between High Court Judge and Torture Claims Appeal Board, Adjudicator and Director of Immigration. Immigration and Appeal Board did not find my problem in my (country?). Same Judge did not find any law ground to accept my leave.

But my first and only one ground is save my life. I do not want to die. To save my life I would not return my home. Though all the Judges refuse my claim or leave.” (sic)

11.The applicant agreed by a letter of 10 August 2020 that the appeal could be heard by two judges.

12.The applicant failed to comply with the direction made by this Court on 12 November 2020 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal would be dealt with on the papers in the event of non-compliance.

13.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.

14.The hearing date on 1 February 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on the basis of the materials already filed with the Court.

Discussion

15.The applicant claimed that it is not safe for him to return.  This is neither a valid ground for seeking leave for judicial review nor a valid ground of appeal.  This ground should be dismissed for this reason alone.

16.In any event, the Board has considered the applicant’s case and rejected the contention that he would be harmed by members of the political party[6] upon his return.  The Board held that the applicant fabricated a story to “mirror real events that he never witnessed and in which he was never involved”.

17.We have carefully considered the Notice of Appeal and the grounds for judicial review advanced by the applicant.  The applicant did not identify any public law error in the assessment of evidence by the Board.  There was therefore nothing to challenge the Board’s conclusion that the applicant fabricated his claim for non-refoulement protection.

18.All of the grounds for judicial review lacked sufficient particulars, the applicant has not identified the matter neglected by the Board or the inquiries which the Board ought to have made.  Further, the issue of internal relocation did not arise because the Board did not accept that the applicant faced any real risk of harm.  We are therefore of the view that none of the grounds for judicial review has any reasonable prospect of success.

19.The applicant also claimed in the Notice of Appeal that he could not find any difference between the judge’s decision and the decisions by the Board and the Director.  This can hardly be a valid ground. It should be noted that 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 is the Board and the court should not usurp the role of 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.  We would dismiss this ground of appeal as well.

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

The applicant, unrepresented, acted in person