Re S

CACV 386/2023, [2024] HKCA 386

On appeal from [2023] HKCFI 2964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 386 OF 2023

(ON APPEAL FROM HCAL 2039 OF 2020)

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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 To (“the Judge”) given on 16 November 2023 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 10 July 2020 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 May 2018 (“the Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 19 April 2011 but was refused permission to land.  He later lodged a torture claim, which was rejected by the Director on 20 October 2011 (“Director’s 1^st Decision”).

3.The applicant did not appeal against the Director’s 1^st Decision, but thereafter raised a non-refoulement claim based on the 3 remaining applicable grounds for non-refoulement protection, on 19 April 2011.

4.The applicant’s claim was based on a fear of being harmed or killed by the family members of his former girlfriend, Hina (who is Muslim).  He claims that they would harm or kill him by reason of, inter alia, her pregnancy out of wedlock and the alleged rape committed against her.  He also fears that if the prosecution of rape against him by the Pakistani authorities was made out, he would be subjected to various types of ill-treatment, due to discrimination, by the police and prison officers etc by reason of his Christian beliefs.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

5.By a Notice of Decision dated 23 May 2018 (i.e. the Director’s 2^nd Decision), the Director decided against the applicant’s claim.  The Director’s 2^nd Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4].

6.The applicant appealed against the Director’s 2^nd Decision to the Board, for which an oral hearing was held on 20 May 2020 and at which the applicant was legally represented by a Duty Lawyer assigned by the Duty Lawyer Service. 

7.The Board found, on the facts and evidence, that:

(1)  in respect of the persecution risk, as the dispute between Hina and the applicant was personal and did not involve religious differences, his apparent fear of persecution was based not on his religion or any of the “Convention Reasons”[5], and there was no well-founded fear for refusing the available state protection in Pakistan;

(2)  in respect of the BOR 2 risk, the applicant’s fear of police mal-treatment and torture upon his return was not well-founded by reason that there are avenues for complaint against police misconduct and that adequate state protection was available;

(3)  in respect of the BOR 3 risk, there was no genuine and substantial risk faced by the applicant and that adequate state protection was in any event available.

8.The applicant’s appeal was accordingly dismissed by the Board’s decision dated 10 July 2020.

The Judge’s decision

9.The applicant, who was legally represented by solicitors and counsel, filed a Form 86 on 9 October 2020 (as amended) seeking to judicially review the Board’s Decision.  His perfected grounds of review, as summarised by the Judge (at [13] of the CALL-1 Form), were:

“(1) misdirection in law on the standard of proof under BOR 3 and risk of BOR 3 violation upon refoulement; [“Ground 1”]

(2)  failure to appropriately consider risk of harm because of the Applicant’s identity profile; [“Ground 2”]

(3)  failure to consider relevant evidence and relevant COI; [“Ground 3”] and

(4)  failure to assess risk of harm faced by the Applicant on a cumulative basis and his identity profile. [“Ground 4”]”

10.After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board as well as submissions from the applicant’s counsel at the hearing of the application, the Judge refused to grant leave for judicial review.  

11.The Judge gave his reasons in refusing leave to apply for judicial review at [14] to [39] of the CALL-1 Form, which may be summarised as follows:

(1)  as for Ground 1, while the Board did not provide an explanation as to its preference in some Country of Origin Information (“COI”) over others, an adequate balance and evaluation of all the relevant COI (which had been extensive) was duly conducted by the Board, and there was no basis for intervention given that the reasons proffered by the Board were “obvious and rational” (see [14]-[23] of the CALL-1 Form);

(2)  as for Ground 2, while the Board did not expressly discuss the extent of the risk of harm posed by reason of the applicant’s identity profile as a Christian and Hina’s profile as a Muslim, it was obvious that the Board was very much alive to this issue, and its findings of fact (such as that the fact that applicant had never encountered religion-related problems with anyone in his community before 2009) support its conclusion that there was no well-founded fear of the applicant being persecuted for a Convention Reason (see [24]-[33] of the CALL-1 Form);

(3)  as for Ground 3, the weight to be given to conflicting COI was a finding of fact unless there was some public law reason for the court to intervene, and in this case there was none, as the COI did not suggest that no reasonable state protection would be available to the applicant (see [34]-[35] of the CALL-1 Form);

(4)  as for Ground 4, as the Board had clearly assessed the applicant’s claim on the 3 applicable grounds on, inter alia, the basis (putting the applicant’s case at its highest) that he was falsely prosecuted of rape with the calculated result of a death sentence or ten years’ imprisonment with “all the possible ill-treatments” as alleged or feared by the applicant, it could not be said that the Board failed to consider whether the prosecution for rape would be used as a “vehicle of persecution” (see [36]-[37] of the CALL-1 Form).

Grounds for appeal

12.In the Notice of Appeal filed on 23 November 2023, the applicant (now acting in person) merely stated that the “decision was reached unreasonably”.

13.In breach of the directions made by the Registrar of Civil Appeals on 23 January 2024, the applicant failed to lodge skeleton submissions with the court 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 9 April 2024 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 applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

17.As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  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.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

18.We agree with the analysis proffered, and the conclusions reached, by the Judge at [14] to [39] of the CALL-1 Form, in that notwithstanding some problematic areas in the Board’s reasoning in its Decision, the Board’s explanations given for its preference of certain COI could not be faulted and certainly could not be said to be “plainly wrong” so as to justify an intervention from the court.

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

The applicant acting in person