Re Shams Ul Qamar

CACV 567/2020

[2021] HKCA 700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 567 OF 2020

(ON APPEAL FROM HCAL 451/2018)

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Before:  Hon Barma JA and Lisa Wong J in Court

Date of Judgment:  21 May 2021

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 27 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 (“Board”) dated 9 March 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 11 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 16 December 2015 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 20 December 2015. 

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 [1] to [6] of the CALL-1 Form.

4.By a Notice of Decision dated 11 September 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 2 March 2018, the Board dismissed the appeal on 9 March 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [43] of the Board’s Decision, the Board found that there was insufficient evidence to show that the applicant’s claim was credible and therefore the Board did not accept that he faced any risk of proscribed harm upon his return.

The judge’s decision

7.The applicant filed a Form 86 on 19 March 2018 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application filed on 19 March 2018, the applicant deposed that:

“I want to judicial review the refusal decision of [the Board]. This decision is unfair and unreasonable.”

9.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

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 [12] to [16] of the CALL-1 Form:

“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 43 of its decision and the fact that he failed to give further evidence or to answer questions raised of his claim despite being advised by the adjudicator to do so to deal with various credibility issues, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. Furthermore, the fact is 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. 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.

16. 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.The applicant was late in bringing the intended appeal.  After considering the explanation offered by the applicant and the situation of the postal service and the High Court Registry in the light of the public health situation in Hong Kong, the judge granted extension of time to appeal on 15 October 2020.

12.In the Notice of Appeal dated 22 October 2020, the applicant contended that:

“The [judge] did not consider my points. The [Board] did not believe me and the judge only follow the [Board]”

13.The applicant agreed by a letter of 22 October 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 3 March 2021 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 dealt with on paper in the event of non-compliance.

14.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.

15.The hearing date on 10 May 2021 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

16.The only ground of appeal is that the judge only followed the Board’s Decision and did not consider the points raised by him.  We note that the judge has addressed the point raised in the documents filed for the leave for judicial review application at [11] of the CALL-1 Form.  The judge then went on to apply the case law and established legal principles in considering whether the Board had made any public law errors at [12] – [16] of CALL-1 Form.  The judge ultimately concluded that there was no public law error in the Board’s Decision and dismissed his application for leave for judicial review.

17.In the circumstances, we do not accept the applicant’s contention that the judge failed to consider his points or that he simply followed the Board’s Decision.

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

The applicant acting in person