Re Irfan Muhammad

CACV 137/2021

[2021] HKCA 1418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 137 OF 2021

(ON APPEAL FROM HCAL NO 1250 OF 2018)

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Before: Hon Au JA and Lisa Wong J in Court

Date of Judgment: 27 September 2021

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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”) set out in the Form CALL-1 dated 16 March 2021, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2021] HKCFI 629.

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 June 2018 (“the Board’s Decision”) dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 17 August 2016 (“the Director’s First Decision”) and 1 August 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim. We will refer the two decisions of the Director collectively as “the Director’s Decisions”.

3.The appeal was listed to be heard on 10 August 2021 and the applicant consented to have it heard by two judges. The applicant was directed to lodge two sets of skeleton argument by 13 July 2021 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 23 June 2021.

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 illegally on 30 January 2014 and was arrested on the same date. He lodged a non-refoulement claim on 2 February 2014.

7.The details of the applicant’s claim and his personal background were set out at paragraph 6 of the Director’s First Decision and paragraphs 9 - 21 of the Board’s Decision.

8.Briefly stated, the applicant claimed that he would be harmed or killed by his family members if refouled. The applicant claimed to change his sect from Sunni Muslim to Shia Muslim in around 2007 under the influence of a famous Shia religious scholar. After his conversion, his family members saw him as a disrepute and threatened to kill him. Out of fear, he fled to Hong Kong for protection.

The Director’s Decision and the Board’s Decision

9.In the Director’s First Decision, the Director assessed the grounds on torture risk^[1], BOR 3 risk^[2], and persecution risk^[3] while the Director’s Second Decision covered the assessment of 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 Decisions to the Board. On 25 January 2018, the Board conducted an oral hearing, during which the applicant answered the Board’s inquires. 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 Decisions.

11.The Board found that, even taking the applicant’s claim to the highest, the applicant failed to prove that he had suffered any harm from his family members or he had suffered any harm at all while he was in Pakistan. It concluded that the applicant’s claims made against his family members fell far below the threshold to establish a non-refoulement claim (paragraphs 32 - 36 of the Board’s Decision). Thus, the Board dismissed his appeal.

The Deputy Judge’s Decision

12.The applicant filed a Form 86 on 3 July 2018 seeking leave to apply for judicial review against the Board’s Decision. He advanced several grounds of review in his supporting affirmation filed on the same date. They were summarized by the Deputy Judge at [11] of the Deputy Judge’s Decision:

“11. In his affirmations and a separate attachment in support of his application, he set out his grounds summarized as follows:

(1) no reasonable basis or adequate reasons to reject his credibility;

(2) failure to consider extended state acquiescence;

(3) failure to consider the COI;

(4) irregularity: the adjudicator is not the same immigration officer; failing to investigate the COI; selective weights to COI; adjudicator referring to COI without prior referring it to the applicant; failing to consider consistent system of human right violation; failing to consider state protection; consider irrelevant issues; no legal representation or hearing for the BOR 2 risk assessment;

(5) procedural impropriety: no sufficient chance for the applicant to call evidence; failing to call psychological and/or psychiatric report; applying incorrect standard of proof and no proper basis for internal relocation assessment.”

13.The applicant did not request an oral hearing before the Deputy Judge. After considering the available documents, the Deputy Judge held that the intended judicial review had no reasonably arguable grounds, and refused to grant leave. He set out his reasons in [12] - [17] of the Deputy Judge’s Decision:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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

‘13.… … 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.’

14. The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, 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.

15. His grounds in support of his application above are sweeping. Most of them are not applicable to his case. The Board has no problem with the credibility of his evidence. There was no state involvement in his case. The Board agreed with the Director that accepting his evidence on the facts of his case, those facts do not support his claim on those risks applicable to his application. I consider that it is unnecessary to address each of his grounds. I have dealt with the relevant grounds by reference to the authorities above. There is no evidence or specifics in support of any of the other grounds. There is no problem with the consideration of the Country of Origin Information by the Board or the application of the law to his case. The grounds above should be rejected.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Grounds for appeal

14.The applicant filed the Notice of Appeal on 29 March 2021 to appeal the Deputy Judge’s Decision. The only ground of appeal therein is that both the Board and the Deputy Judge refused his claim without any proper basis. Nevertheless, he did not elaborate on this ground.

Discussion

15.The relevant legal principles governing the appeal in non-refoulement cases are set out at paragraph 14 of Nupur Mst v Director of Immigration [2018] HKCA 524.

16.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).

17.In light of the above, it is thus incumbent on the applicant to point out the errors in the Deputy Judge’s Decision with sufficient particulars and specifics.

18.However, it is clear that the Deputy Judge’s Decision had provided the reasons for refusal and the applicant did not identify any errors committed therein. There are therefore no viable grounds of appeal to challenge the Deputy Judge’s Decision.

19.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

20.For the reasons given above, the applicant’s appeal has no merits. Accordingly, we dismiss the appeal.

The applicant acting in person