Re Imran Muhammad

CACV 378/2019

[2021] HKCA 585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 378 OF 2019

(ON APPEAL FROM HCAL NO. 45 OF 2018)

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Before:  Hon Yeung, Lam VPP and Barma JA in Court

Date of Judgment:  7 May 2021

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J U D G M E N T

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The Court:

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 2 August 2019 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 dated 27 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 24 April 2015 and 6 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 10 September 2009 illegally and was arrested by the police on the same day.  He lodged a claim for non-refoulement protection on 12 September 2009. 

3.The applicant claimed to have entered into a guarantee agreement for the sale of a piece of land and his claim for non-refoulement protection was based on threats from the buyer of the land.  The details of the applicant’s claim have been summarised by the judge at [1] to [7] of the CALL-1 Form.

4.By a Notice of Decision dated 24 April 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.By a Notice of Further Decision dated 6 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 September 2017, the Board dismissed the appeal on 27 October 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.At [32] of the Board’s Decision, the Board concluded that the applicant failed to establish that he will be subject to any of the proscribed harm upon his return.

The Judge’s decision

8.The applicant filed a Form 86 on 9 January 2018 which contained the following grounds for judicial review, summarised below:

(1)  failure on the part of the Director to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which led to an unfair or unreasonable rejection of his non-refoulement claim;

(2)  failure on the part of the Director to recognize that the applicant was tortured at the behest of or in full collusion of the police and state law enforcement agencies as well as politicians;

(3)  failure on the part of the Director to recognize that the state should be rendered liable to the applicant by reason of the failure of the state and public officials to provide reasonable protection to its citizens;

(4)  failure on the part of the Director to take into account such argument or to give sufficient weight in such argument before reaching his decision;

(5)  failure on the part of the Director to consider or give sufficient weight to relevant COI that supported the applicant’s claim that the police in Pakistan would not be able to protect its citizens;

(6)  that the Director had shown unfair attitude towards the applicant in relying on COI which suited his pre-conceived conclusion;

(7)  failure on the part of the Director to recognize that corruption and incompetency in the administration in Pakistan was still a serious problem as evidenced by human rights reports which supported the applicant’s case;

(8)  failure on the part of the Director to apply high standards of fairness in assessing the applicant’s claim;

(9)  failure on the part of the Board to make sufficient enquiries before finalizing its determination; and

(10)  failure on the part of the Board to appreciate the fact that the applicant was incarcerated and failure to give the applicant sufficient opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.

9.In his affirmation in support of the leave application dated 9 January 2018, the applicant exhibited the relevant documents.

10.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 [15] to [19] of the CALL-1 Form:

“15. These are however all just broad and vague assertions of the applicant containing several 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 the decision, or in what way was state acquiescence relevant to his case as there was simply no evidence of him ever being tortured by anyone let alone by the police or on their behest or in their collusion, or how did the Director fail to take into account or to place sufficient weight in the relevant COI or to apply high standards of fairness, or how did the adjudicator fail to give him sufficient opportunity to adduce relevant evidence in support of his case when he declined even to answer any questions and never raised any such request during his hearing before the Board. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of which I do not find any of them reasonably arguable for his intended challenge.

16. The applicant’s claim was rejected by the Board essentially based on its adverse finding on his credibility, of which the applicant did not help by refusing to give further evidence or to answer questions to clarify or elaborate his case at the invitation of the adjudicator as there was no objective evidence to support his material assertions. Based on his evaluation of the evidence available, the adjudicator rejected the applicant’s claim on the basis of his failure to substantiate his claim, which was well within the province of the adjudicator as has been repeated emphasized by the Court of Appeal, and with which the court in its judicial review jurisdiction will not likely interfere: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17. Furthermore, the fact 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 decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18. 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.

19. 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

11.In the Notice of Appeal dated 14 August 2019 the applicant contended that:

“I have life’s danger in my home country Pakistan, so why, I don’t want go back Pakistan. Please help me to save my life. Thanks.”

12.The applicant failed to comply with the direction made by this Court on 3 September 2019 requiring him to lodge skeleton submissions not less than 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper 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 17 December 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

15.The only ground of appeal is that the life of the applicant will be in danger upon his return.  The judge has held that there was no public law error in the Board’s conclusion that the applicant failed to establish his case for non-refoulement protection.  The applicant has not identified any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have 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.

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

The applicant, unrepresented, acted in person