RE AHMAD SAEED

CACV 170/2018

[2018] HKCA 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 170 OF 2018

(ON APPEAL FROM HCAL NO. 618 of 2017)

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JUDGMENT

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

1.  On 29 August 2018, this Court handed down our judgment (“the Judgment”) dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 9 May 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 19 September 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

Despite the directions of the Registrar of Civil Appeals given on 20 September 2018, the applicant has not lodged any written submission by the time prescribed.

3.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  The Notice of Motion raised the following grounds:

(1) As he could not read and write English, he had difficulty expressing himself or knowing what to do, and had to wait for an interpreter to come and explain to him.  That was why it was difficult for him to apply under the BOR 2 risk ground.

(2) Irrespective of whether his claim has merit under the BOR 2 risk ground, it is his legal right to have his claim thoroughly assessed, to be represented and to be able to fully express himself.

(3) He did not receive adequate assistance in different ways.  He had not language assistance and was uneducated and the support he received could not really help him to explain his case clearly.

(4) Asylum seekers were labelled as illegal immigrants and had to overstay in order to apply for non-refoulement protection.  Owing to this, they were discriminated against by the Board, contrary to the principle of UN(CAT) which should offer protection without bias.  The fact that assessment proceeded on the assumption that they were illegal immigrants and it was for them to argue against deportation is contrary to the humanitarian approach.

(5) He was further imperilled by the lack of adequate support.  He did not know he had to submit a skeleton argument, failing which he would not be allowed to attend the hearing because all was written in English.          

5.  Firstly, all the grounds set out in the Notice of Motion relate to the applicant’s personal circumstances.  They do not involve any question of great general or public importance. 

6.  Secondly, the complaint in Grounds (1) to (3) about lack of language assistance and legal representation generally and specifically with regard to the BOR 2 risk assessment had been put forward in support of the application for leave to apply for judicial review.  The Judge had given full consideration to them and gave detailed reasons for rejecting them in [10] of the Form CALL-1 dated 9 May 2018.  The applicant did not advance any ground of appeal against the Judge’s reasons.  We see no merit in these grounds.

7.  Thirdly, the complaint of discrimination and bias in Ground (4) is a new ground that was neither advanced before the Judge nor in the appeal before this Court.  It is not permissible to put forward new ground or argument in an application for leave to appeal.  In any event, this ground is no more than a bare assertion and is devoid of particulars.  There is no discernible merit.

8.  Fourthly, we had in [3] of the Judgment explained the rationale and importance of the requirement to lodge skeleton submission.  The direction to lodge skeleton argument and the warning of the consequences of default had twice been communicated to the applicant, including the notice of hearing.  We do not accept that the applicant was not made aware of the requirement and the consequences of non-compliance with the direction. Ground (5) is unarguable.

9.  For the above reasons, the proposed grounds of appeal do not satisfy the requirement under section 22(1)(b).  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision.  As the condition for giving leave to appeal is not met, we dismiss the Notice of Motion.

CACV 170/2018

[2018] HKCA 530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 170 OF 2018

(ON APPEAL FROM HCAL NO. 618 of 2017)

________________________

________________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 9 May 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 11 August 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 March 2017 rejecting his non-refoulement claim under the BOR 2 risk[1] ground.  

2.  The appeal was listed to be heard on 16 August 2018.  The applicant was directed to lodge 3 sets of skeleton argument by 19 July 2018 and also warned that if he failed to do so, the hearing date would be vacated and the appeal would be dealt with on paper based on materials already lodged.  The direction and the warning were communicated to the applicant in the letter from the court and in the notice of hearing both dated 8 June 2018. 

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Due compliance with the requirement to lodge skeleton arguments is important for the proper and effective functioning of the appeal process since 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.  This Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement after being warned of the consequence of default, is treated as the abandonment of the right to an oral hearing.  In the present case, as the applicant failed to lodge any skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

4.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 22 September 2013, and surrendered to the police on 5 November 2013.  On 3 March 2014, he lodged a non-refoulement claim based on his fear that, if he returned to Pakistan, he would be harmed or killed by his two cousins arising from a land dispute. 

5.  According to the applicant, the land in question was inherited from his grandfather by his father and his uncle.  Over the years, the applicant’s father had been farming the land.  In 2008, the applicant’s uncle wanted to sell the land but did not agree to share the proceeds of sale. Thereafter, the crops grown by the applicant’s father were damaged, and the applicant was attacked on several occasions by his uncle’s two sons and their associates, who were armed with knife and pistols.  On a few of these occasions, the applicant sustained bad injuries which took some time to heal.  The applicant only reported to the police about the occasion when one of his cousins fired a shot at him.  The police took no action.  The applicant said that after he left Pakistan, his brother was killed by his cousins.

6.  By the Notice of Decision dated 18 November 2015, the Director rejected the applicant’s claim having regard to the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].  The applicant appealed to the Board.  An oral hearing was held on 8 September 2016, during which the applicant had given evidence.  By its decision dated 10 March 2017, the Board dismissed the appeal. 

7.  The Board concluded that the claim failed on the torture risk ground in that there was no suggestion that the hostility or harm was instigated or authorised by, or acquiesced in by government or public authority; the injuries inflicted did not attain the minimum level of severity; the applicant failed to establish substantial grounds showing a foreseeable and real risk of being subjected to torture if he returned to Pakistan; and there were internal relocation alternatives.  The Board also found the claim failed on the BOR 3 risk ground as there was no substantial ground to believe the applicant would face a future risk of serious harm, and also the availability of state protection.  For the same reasons and because the harm feared was not due to any of the reasons under the Convention, the Board considered the claim also failed on the persecution risk ground.     

8.  By letter dated 24 February 2017, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk.  Not having received a response from the applicant, the Director proceeded to consider the applicant’s claim on the ground of BOR 2 risk based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 14 March 2017, the Director decided against the applicant.

9.  The applicant appealed against the Director’s further decision to the Board.  On 11 August 2017, the Board dismissed the appeal on paper without holding an oral hearing.  Referring to the reasons given in the first decision on the appeal against the Director’s first decision, the Board found the applicant failed to establish a case of violation of the right to life under BOR 2.  

10.  The applicant filed his Form 86 on 13 September 2017 seeking leave to apply for judicial review against the Board’s second decision. The applicant’s supporting affirmation filed on the same day put forward a number of grounds to support the relief claimed, which were considered and rejected by the Judge for the reasons stated in [10] of the CALL-1 Form dated 9 May 2018:

“10. The Applicant submitted the following grounds of review against the Decision of the Adjudicator, dated 11 August 2017, which is in respect of his BOR 2 claim only. These grounds are identical in format to other applications for leave to judicially review the Director and Adjudicator and are not entirely clear. Doing the best I can to identify the true issues relied upon, the following grounds are the subject of complaint:

(i) The Applicant did not receive any invitation letter from immigration to ask for additional facts and grounds in respect of his BOR 2 claim. By this, I take it that the Applicant is referring to a letter of 24 February 2017, which is referred to at page 5 of his bundle in the letter to him from the Immigration Department dated 14 March 2017, and which informs him that his claim under BOR 2 has been rejected. The letter of 24 February 2017, informed him of the intention of the Director to assess his claim under BOR 2 and of his right to make further representations. The Applicant did not do so. He is under a duty to ensure that he informs the Director of any change of address. The letter of the 1 March 2017, was received by him. He gives no explanation why the letter of the 24 February 2017, would not have been received. Be that as it may, the Director considered his original application and the facts contained therein, which gave no indication whatsoever that the Applicant was at risk of arbitrarily being deprived of his life in the circumstances arising for a BOR 2 claim. BOR 2 has a much narrower factual and legal basis than the other heads of claim and it was perfectly reasonable and procedurally fair in all the circumstances for the Director to proceed to make a Decision in the light of the notice given. No further submissions were made after the Applicant received the letter of 14 March notifying him of the Further Decision and it is therefore no surprise that the Adjudicator took a similar view when he came to deal with the BOR 2 claim, especially as the Applicant had every opportunity to submit further documentation within his appeal bundle dated 18 April 2017. The Applicant has made no indication that he has anything further to say on this issue save that, sadly, a relative had recently died from what he alleges to be a murder by his relatives.

(ii) The Applicant was not given legal representation before the TCAB or for the purposes of judicial review in respect of BOR 2. This argument stands or falls in the same way as the one above. BOR 2 covers an inherent right to life as opposed to a risk of torture or cruel, inhuman or degrading treatment or punishment, or of persecution. The Applicant failed to establish the much lower standard of proof in respect of the other heads of claim and it necessarily follows that he would unable to establish this higher standard of proof which would need to show that he is at a real and personal risk of losing his life. Whether or not an Applicant is provided with publicly funded legal representation before the TCAB is a matter for the Director of Legal Aid (“DLA”) and within his discretion to refuse if he believes there is no merit in the claim. The Applicant has not provided either his application for legal aid on appeal or the notification of refusal and I am not in a position to be able to consider whether the DLA acted improperly in so doing. It is for the Applicant to raise this issue sufficiently for the court to consider it. On the facts before me, I can see no grounds for finding that an issue suitable for judicial review has been raised.

(iii) He was not provided with the services of an interpreter for such claim. This would necessarily follow from the decision that there was no need to call for an oral hearing. The Applicant has been in Hong Kong since 2013 and clearly has some proficiency in English. His claim form and supporting documentation indicates he is able to produce documentation in the English language and has done so. The difficulty he has is that his claim under BOR 2 had no merit whatsoever. The Applicant has, in any event, not established whether he made such a request and why his request was refused.

(iv) The Adjudicator relied upon the COI and previous grounds, which supported rejection of the claim. That sometimes happens. It may also support a claim if it is properly made out. The COI is a valuable source of relevant information and was taken into consideration. It was open to the Applicant to submit alternative or additional documentation to support any argument he had as to the weaknesses of the COI available or to suggest alternative objective viewpoints. He did not do so.

(v) Life on the ground is different to COI information. The Applicant was heard before the Director and the Adjudicator when he had the opportunity to explain the facts he relied upon. He does not provide any particulars as to how this ground is applicable to a claim under BOR 2.

(vi) There was bias. The Applicant did not identify the manner in which the Adjudicator dealt with his claim which signified any bias. He had the facts before him which had been analysed by the Director and had been the subject of an earlier oral hearing when all of the facts were rehearsed as well as having the evidence from that oral hearing before him and which canvassed everything the Applicant wished to say. If any bias had been displayed, it was incumbent upon the Applicant to identify it.

(vii) The Adjudicator used a formulaic approach. The Applicant did not provide any examples of how he says that the Adjudicator approached his appeal in a formulaic manner to his detriment. There will inevitably some degree of formula in approaching this type of claim as there is when approaching other areas of judicial activity which form the subject matter of review. The question is whether the approach adopted was procedurally incorrect, unreasonable or unfair and whether the Adjudicator made any error of law. Given his lack of explanation of this ground of review, I am unable to assess if this was the case. A perusal of the papers available to me, do not suggest this was the case.

(viii)  There was no oral hearing. There is no inalienable duty to hold an oral hearing on appeal.  The Applicant had been heard on the other heads of claim and there was no suggestion within the original claim that BOR 2 would be triggered.  Therefore, it was perfectly reasonable for the Adjudicator to take the view no further hearing was necessary.  My comments at subparagraph (i) above apply.  No new facts had been submitted on appeal to the Adjudicator to suggest that anything new had occurred which would have altered the Applicant’s position under BOR 2. There was nothing which would suggest that the Adjudicator acted unfairly in taking the view that a further oral hearing was unnecessary.”

11.  The Judge further concluded in [11] to [13] of the CALL-1 Form that leave to apply for judicial review should be refused:

“11. In an application for leave to apply for judicial review of the decision by the Adjudicator in respect of the Applicant’s BOR 2 claim, the court is required to examine whether the Adjudicator made any error of law or procedure, or handled the matter in any way unreasonably or which was not in compliance with the highest levels of fairness: Secretary for Justice v Sakthevel Prabakar (2004) 7 HKCFAR 187.

12. I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged with the Applicant in the original hearing and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review against the decision to reject his claim under BOR 2 and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

12.  The Notice of Appeal filed on 21 May 2018 did not set out any grounds of appeal.  The applicant only stated that he would like to review the Director’s decision on his non-refoulement claim and that there had been a disregard of his dangerous situation. 

13.  The Judge had carefully and comprehensively considered the grounds put forward by the applicant in support of his intended judicial review.  We see no basis for interfering with her conclusion that the applicant’s grounds were not reasonably arguable, and there was no discernible error of law or procedure in the decisions of the Director and the Board on the BOR 2 risk ground or any unfairness in the process by which their decisions were reached. We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused. 

14.  Accordingly, we dismiss the appeal.