Re Tahir Muhammad

CACV 145/2021

[2021] HKCA 1417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 145 OF 2021

(ON APPEAL FROM HCAL NO 2186 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 Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 24 August 2020, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 2063[1].

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 20 September 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 9 February 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

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 15 February 2014 and was arrested on 14 March 2014. He lodged a torture claim on 16 March 2014.

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

8.Briefly stated, the applicant claimed that he would be harmed or killed by some religious extremist because of his affiliation with MSF, a young wing of All Pakistan Muslim League (“PML”). The applicant claimed that he befriended with some members of MSF and was subsequently given a membership card of MSF. Although he was not given any particular tasks by MSF, some local religious people still considered him wrong by drinking and affiliating with the MSF. As a result, he was threatened by some religious extremists and even chased by three of them in one incident. Out of fear, he fled to Hong Kong for protection.

The Director’s Decision and the Board’s Decision

9.In the Director’s Decision, the Director assessed the grounds on torture risk^[2], BOR 3 risk^[3], persecution risk^[4] and BOR 2 risk^[5]. 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 Decision to the Board. On 22 June 2018, the Board conducted an oral hearing, during which the applicant answered the Board’s inquires with the assistance of an interpreter. 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 Decision.

11.The Board found that the applicant was not a credible witness. It identified the applicant’s claim as brief, not probative and inconsistent on different stages of the screening process. However, the applicant failed to provide cogent explanation when the Board sought to elicit detailed information at the hearing. In light of the vagueness and incoherence of the applicant’s claim, the Board dismissed his appeal on the sole basis of lack of credibility (paragraphs 21 - 29 of the Board’s Decision).

The Deputy Judge’s Decision

12.The applicant filed a Form 86 on 10 October 2018 seeking leave to apply for judicial review against both the Director’s Decision and the Board’s Decision. However, the applicant failed to advance any viable grounds of review before the Deputy Judge. As the Deputy Judge recorded at [9] of the Deputy Judge’s Decision:

“9. On 10 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form in which he merely repeated his claim that his life would be in danger in his home country for religious reason, and in his supporting affirmation of the same date he simply claimed that their decisions were unreasonable as they failed to consider all the matters raised in his claim but without providing any particulars or elaborations as to how they failed to do so, nor did he do so at the hearing of his application, while his written submission dated 30 December 2019 is another regurgitation of his claim with citation of some general legal principles but without any elaboration as to their relevancy to his case. As such I do not find any reasonably arguable basis for his intended challenge.”

13.The Deputy Judge heard the applicant on 10 June 2020. After the hearing and 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 [10] - [14] of the Deputy Judge’s Decision:

“10. 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.

11. 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 21 - 29 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

12. 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, 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.

13. 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.

14. 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

14.The applicant filed the Notice of Appeal on 1 April 2021 to appeal the Deputy Judge’s Decision. The only ground of appeal is that the Deputy Judge did not show good reason for rejecting his leave application.

Discussion

15.The relevant legal principles governing the appeal in non-refoulement cases are set out at [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 applicant did not identify with particulars any errors committed by the Deputy Judge. 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