RE AHMED JAHANGIR

CACV 190/2020

[2020] HKCA 1035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 190 OF 2020

(ON AN APPEAL FROM HCAL NO. 1615 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 12 November 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 4 June 2020 refusing him leave to apply for judicial review.    

2.  On 23 November 2020, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He had also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.

5.  The notice of motion set out the following grounds of appeal:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the Director’s decision in refusing the application for judicial review.

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s decision whereby the Director was required to give reasons justifying the decision.

6.  The applicant stated in his affirmation that there is a good ground of appeal that was not necessarily considered in the appeal, and he believes there are sufficient merits in the ground to justify the Court allowing the appeal.  This is, however, a general assertion with no elaboration of what the ground of appeal is. 

7.  The written submission cited authorities on the principles of high standards of fairness and Wednesbury unreasonableness.  It argued that high standards of fairness are required since the life and limb of the applicant and his fundamental human right not to be subject to torture are involved and also because the decision has the effect of finally disposing of the applicant’s claim.  It also argued that the Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the applicant’s credibility.  The written submission further referred to section 37ZT of the Immigration Ordinance, Cap. 115 which concerned the Board’s considerations in dealing with the late filing of a notice of appeal.  

8.  What has been forward by the applicant in the notice of motion, affirmation and written submission do not constitute proper grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, they do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, the complaints about irrationality and procedural unfairness in the Director’s decision and the Board’s decision were never raised in the application for leave to apply for judicial review before the Judge or in the appeal to this Court.  It is not open to the applicant to put forward these new grounds in this application for leave to appeal to the Court of Final Appeal.  In any event, they are very general assertions with no particulars given.  Moreover, the reference to section 37ZT of the Immigration Ordinance in the written submission is irrelevant since the appeal to the Board was filed within time.

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

10.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.

The applicant, unrepresented, acted in person.

CACV 190/2020

[2020] HKCA 905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 190 OF 2020

(ON APPEAL FROM HCAL NO. 1615 of 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 4 June 2020 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 12 July 2018 dismissing the applicant’s appeals against the decision of the Director of Immigration (“the Director”) dated 12 September 2017 rejecting his non-refoulement claim.    

2.  The applicant’s appeal was scheduled to be heard on 9 November 2020.  The applicant was directed to lodge his written skeleton argument by 12 October 2020 and further warned that if he failed to do so, he shall be deemed to have waived his right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 29 July  2020 and the Notice of Hearing dated 7 September 2020. 

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by 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.  In the present case, as the applicant failed to lodge a 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.  On 12 January 2016, he surrendered himself to the Immigration Department, having entered Hong Kong illegally.  He later raised a non-refoulement based on his fear of being harmed or killed by people of the Pakistan Muslim League (Nawaz) party (“PML(N)”) because he refused to support their candidate and voted for the candidate of the Pakistan Tehreek-e-Insaf (“PTI”) during the 2015 local election. 

5.  The applicant’s case was set out in detail in the Director’s decision and also the Board’s decision.  In gist, the applicant stated that he and his family used to be supporters of PML(N) but in the December 2015 Local Body Election they decided to support PTI and vote for its candidate. Afterwards the applicant and his family were targeted by the workers and members of PML(N).  Four days after the election, there was an incident (“the Incident”) in which five men armed with guns came to the applicant’s house and threatened to kill him if he did not support PML(N).  Many people heard the noise and gathered outside the house, as a result the men left without causing any harm. No report was made to the police as the applicant considered them corrupt and would favour PML(N) which is the ruling party.  On his friend’s advice and with his uncle’s help, the applicant departed for Guangzhou on 3 January 2016, and on 9 January 2016 entered Hong Kong illegally by boat.   

6.  By a Notice of Decision dated 12 September 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].   

7.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 29 May 2018, during which the applicant had answered questions put by the Board.  By its decision dated 12 July 2018, the Board dismissed the appeal.  In short, the Board after considering all the circumstances of the case, found that in the Incident the people of the PML(N) did not intend to kill the applicant, but was only trying to keep the applicant in the PML(N) by warning or intimidating him.  The Board also found on the facts that the applicant’s fear of being killed or harmed was not well-founded, and concluded that the applicant failed to substantiate his non-refoulement claim under all applicable grounds.          

8.  The applicant filed his Form 86 together with a supporting affirmation on 13 August 2018 to seek leave to apply for judicial review against the decision of the Board.  The Form 86 did not contain any ground for seeking relief.  In the supporting affirmation, the applicant stated that his enemy had won again in the recent election, which showed that no matter how evil he was, he could still win, and that due to his influence, money and connections, the applicant would be in danger if he were to return to his home country.           

9.  The Judge heard the application at an oral hearing held on 21 August 2019.  By his decision of 4 June 2020 ([2020] HKCFI 1015), the Judge refused to give leave to apply for judicial review.  The Judge took note that the Board did not accept the applicant’s claim was made out on the facts.  He was of the view that there was no basis to intervene with the Board’s decision.  He concluded that the applicant failed to show that his intended judicial review had reasonable prospect of success.

10.  The applicant filed a Notice of Appeal on 15 June 2020 to appeal the Judge’s decision.  In it, the applicant stated the following as his grounds of appeal:

“the gravity of my circumstances [has not] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

11.  The applicant had also filed an affirmation in which he asked the court to exercise its discretion to allow him to appeal, explaining that he was unrepresented and did not have access to legal advice.  The applicant is mistaken. He can appeal against the Judge’s decision as of right, and since his notice of appeal was filed within time, he does not require leave to do so.

12.  As to the matters stated in the Notice of Appeal, they do not constitute viable grounds of appeal.  The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(2)].

13.  In the present case, the applicant had not provided any proper ground for seeking relief by way of judicial review.  As such, his intended judicial review could not have succeeded.  In the circumstances, there was no basis on which the Judge could have granted leave to apply judicial review.  In any event, in the present appeal, the applicant has not pointed to any error in the Judge’s decision and reasons.  In these circumstances, the applicant’s appeal is unarguable.

14.  For the above reasons, we dismiss the appeal.

The applicant, unrepresented, acted in person.