RE BUKHARI WAQAS

CACV 266/2018

[2019] HKCA 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 266 OF 2018

(ON APPEAL FROM HCAL 688/2017)

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RE:

BUKHARI WAQAS

Applicant

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Before:

Hon Yeung Ag CJHC, Barma JA and McWalters JA in Court

Date of Judgment:

31 January 2019

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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.  On 19 October 2018, this court (Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 15 June 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 30 October 2018, for leave to appeal to the Court of Final Appeal.  Although the notice of motion was headed as being in the Court of Appeal and was lodged with the Appeals Registry of the Court of Appeal, it sought a hearing before the Court of Final Appeal. As an application for leave to appeal to the Court of Final Appeal should, in this case, initially have been made to and heard by this Court, we treated it as a motion before the Court of Appeal.  The applicant stated in his notice of motion that he did not have an oral hearing for the leave application and his appeal to this court.  He also contended that there was a lack of legal representation for his claim based on BOR 2 risk.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 12 November 2018.  In his written submission, the applicant reiterated the matters raised in the notice of motion.

5.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion and written submission.

6.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his notice of motion and his written submission. 

7.  The applicant did not request a hearing in the Form 86, thus the leave application was dismissed without an oral hearing (RHC Order 53 r 3(3)). In the letter from the court to the applicant dated 2 August 2018, the applicant was reminded of the need to lodge skeletons for the hearing of his appeal.  In the letter from the court to the applicant dated 18 September 2018, the applicant was informed of the vacating of the hearing for the appeal because of his failure to lodge skeleton argument.  In our view, this ground is plainly not reasonably arguable before the Court of Final Appeal.

8.  As for the ground based on the lack of legal representation for his claim based on BOR 2 risk, as noted in [15] of our judgment this is not a ground raised in the Form 86.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the notice of motion dated 30 October 2018 is dismissed.

 
 

(W Yeung)	(Aarif Barma)	(Ian McWalters)
Acting Chief Judge of the High Court	Justice of Appeal	Justice of Appeal

 

The applicant acting in person

CACV 266/2018

[2018] HKCA 705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 266 OF 2018

(ON APPEAL FROM HCAL 688/2017)

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RE:

BUKHARI WAQAS

Applicant

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Before:

Hon Yeung VP and Barma JA in Court

Date of Judgment:

19 October 2018

___________________

J U D G M E N T

___________________

Hon Barma 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 15 June 2018 refusing leave to apply for judicial review. The applicant’s intended application for judicial review is against the decision of Torture Claims Appeal Board dated 22 September 2017.

2.  On 1 August 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions.  He also directed that if such submissions were not lodged within the prescribed time (ie not less than 28 days before the hearing of the appeal), the applicant would be deemed to have waived his right to have an oral hearing and elected to have this appeal disposed of on paper.  The requirement of lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of the applicant is important for the proper and effective functioning of our appeal process and this court has taken a firm stance against non-compliance with such requirement: see Re Manjit Kaur[2018] HKCA 247, para 10; Re Miha Md Limon[2018] HKCA 278, para 12; Re Ali Arshad[2018] HKCA 304, para 10; and Re Sk Sarfaraj[2018] HKCA 307, para 10.

3.  On 20 August 2018, the hearing of this appeal was fixed for 11 October 2018.  When the hearing date was fixed, the applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

4.  Despite the directions and reminder, the applicant did not lodge any skeleton submissions. Accordingly, the hearing date was vacated, and we now deal with this appeal on the basis of the material before us.

Background

5.  The applicant is a Pakistani National and is a Shia Muslim.  He entered Hong Kong illegally on 22 September 2009 and was arrested by police on the same day. 

6.  On 24 September 2009, the applicant lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by Ameer Khan (“Ameer”) who belongs to a Sunni Muslim organization called Harkat-ul-Mijahideen (“HM”), because he refused to convert to Sunni Islam.  The details of the applicant’s claim have been summarised by the Judge at [4] – [5] of the CALL-1 Form.

7.  By the Notice of Decision dated 16 September 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director assessed that the level of risk of harm by Ameer and his people against the applicant was low and the Director was not satisfied that the applicant had been inflicted with ill-treatment to a minimum level of severity. It was also considered that the availability of state protection and the possibility of relocation would further lower or negate the perceived risk.  The decision covered the torture risk, the BOR 3 risk and the persecution risk.

8.  By a Notice of Further Decision dated 9 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk, and decided against him. 

9.  The applicant appealed to the Torture Claims Appeal Board against the Director’s decisions.  By its decision dated 22 September 2017, the Board found that applicant’s evidence was contradictory and incredible and his evidence was not reliable. The Board further found that there was no evidence to support the applicant’s allegation that Ameer and his people had networks to track down the applicant if he were to relocate to other places than his home village.  Hence, the applicant’s fear of ill-treatment would be unlikely to materialize.  The Board was also satisfied that state protection would be available to the applicant that would further lower or negate the perceived risk.  The applicant was unable to discharge the burden upon him to establish any of his claims under the applicable grounds and his appeal to the Board was dismissed.

The Judge’s decision

10.  The intended judicial review was in respect of the decision of the Board.  The Form 86 filed by the applicant on 27 September 2017 did not contain any grounds for judicial review and the applicant did not file any affirmation in support of his leave application.

11.  The applicant did not request for an oral hearing and the Judge considered the application for leave to apply for judicial review on paper.  After summarizing the background of the case and giving consideration to the decisions of the Board, the Judge gave her reasons in refusing leave at [12] to [13] of the CALL-1 form:

“Conclusion

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 Director and Adjudicator engaged in a joint endeavour with the Applicant 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 their determinations, which were open to them on the facts and eminently reasonable. The Applicant’s case under all heads of claim was completely without merit. He had suffered no injury; supposed himself to be at risk as a result of hearsay; had made no determined effort to seek the assistance of the authorities and had been free from any suggestion of harm by moving elsewhere in Pakistan.

13.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review 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.”

The Appeal

12.  The applicant lodged the Notice of Appeal on 26 June 2018 in which he set out the background of his case, repeated his fear of being harmed if sent back to Pakistan, set out provisions of the Convention against Torture, and essentially raise one ground of appeal, namely:

“These ground on which relief is sought without the benefit of legal representation. I am currently seeking legal assistance and reserve the rights to submit additional and/or amended ground and document in support of my application.

It was mentioned in Secretory for Security v. Sakthevel Prabakar (2004) 7 HKCFAR 187 that high standard of fairness should be maintained.  I was given the legal assistance from duty lawyer service.  The service ended since the decision from the Immigration Department has been issued.  So I highly request to respected court to give intention on my case.”

13.  By a letter received by the court on 11 July 2018, the applicant consented to this appeal being heard by a two-judge court.

Discussion

14.  We observe first that the ground of appeal relied on does not in fact identify any error on the part of the court below.  They are therefore not viable.

15.  Further, the ground now put forward, based upon the absence of legal representation, was not relied on as a ground for judicial review and thus cannot now be relied on as a ground of appeal.

16.  In any event, as regards the fairness of the process before the Board and the court, this court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks means an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah[2018] HKCA 14, Re Zahid Abbas[2018] HKCA 15, Re Tariq Farhan[2018] HKCA 17, and Re Lopchan Subash[2018] HKCA 37.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  On the facts of the present case, we do not find anything amiss arising from lack of legal representation in the process before the Board.  The intended ground of appeal is thus devoid of merit and must fail.

17.  Having considered the materials before us, we agree with the Judge’s observations.  We cannot find any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  We agree with the Judge that leave to apply for judicial review should be refused.

18.  For these reasons, we do not see any prospect of success in the intended judicial review, and dismiss the appeal accordingly.

 

 

(Wally Yeung)	(Aarif Barma)
Vice-President	Justice of Appeal

  

The applicant acting in person