RE ALI MUJAHID

CACV 169/2021

[2022] HKCA 638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 169 OF 2021

(ON APPEAL FROM HCAL 728 OF 2018)

________________________

RE:

ALI MUJAHID

Applicant

________________________

Before:  Hon Barma JA and G Lam JA in Court

Date of Judgment: 20 May 2022

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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 14 September 2021, this court (Barma JA and G Lam JA) handed down a judgment dismissing the applicant’s appeal against the decision of DHCJ Bruno Chan given on 8 April 2021 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 decision 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 filed on 23 September 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“… there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.  In his written submissions lodged on 4 October 2021, the applicant referred to various authorities which established the trite principles of, inter alia, the requirement of a high standard of fairness in a decision-maker’s determination of a torture claim.  However, there was no attempt by the applicant to elaborate on how these principles were misapplied or contravened in the processing of his non-refoulement claim.

5.  Having considered the applicant’s Notice of Motion and written submissions, 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 the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal 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.

7.  Neither the Notice of Motion nor the written submissions identify any supposed error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

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

9.  For these reasons, the Notice of Motion dated 23 September 2021 is dismissed.

(Aarif Barma) Justice of Appeal

(Godfrey Lam) Justice of Appeal

The applicant acting in person

CACV 169/2021

[2021] HKCA 1276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 169 OF 2021

(ON APPEAL FROM HCAL 728/2018)

-----------------------------------

RE:

ALI MUJAHID

Applicant

-----------------------------------

Before: Hon Barma JA and G Lam JA in Court

Date of Judgment: 14 September 2021

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 8 April 2021 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 (“Board”) dated 20 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 29 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan. He entered Hong Kong on 29 August 2012 illegally and was arrested by the police on 22 November 2012. He lodged a torture claim on 24 November 2012 which was dismissed by the Director on 26 March 2013. The applicant then lodged a claim for non-refoulement protection on 8 April 2013.

3.  The applicant claim that he would be harmed or killed by the Muslim community for spreading the Ahmadiyya beliefs. The details of the applicant’s claim have been summarised by the judge at [1] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 29 September 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2] and the persecution risk^[3].

5.  The applicant appealed to the Board. After a hearing on 13 February 2018, the Board dismissed the appeal on 20 April 2018 (“Board’s Decision”). At [5.15] of the Board’s Decision, the Board found that the applicant was evasive, dishonest and unreliable. The Board found that the applicant failed to establish his case for non-refoulement protection.

The judge’s decision

6.  The applicant filed a Form 86 on 26 April 2018 seeking to judicially review the Board’s Decision which contained no ground for seeking relief.

7.  In his affirmation in support of the leave application filed on 26 April 2018, the applicant deposed that:

“My life is danger in Pakistan that’s why I cannot take risk in my life.”

8.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [15] of the CALL-1 Form:

“10. On 26 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger in Pakistan and that he cannot risk going back there without putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application. As such I do not find any reasonably arguable basis for his intended challenge.

11. 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.

12. 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 5.1 – 5.15 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.

13. 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.

14. 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.

15. 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

10.  In the Notice of Appeal filed on 15 April 2021, the applicant stated that:

“the Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations”

11.  The applicant failed to comply with the direction made by this court on 29 June 2021 requiring him to lodge skeleton submissions 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.

12.  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.

13.  The hearing date on 30 August 2021 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

14.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker. On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.

15.  The applicant only identified errors allegedly committed by the Board but did not identify any error on the part of the judge and he has therefore failed to advance any viable ground of appeal.

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

(Aarif Barma)	(Godfrey Lam)
Justice of Appeal	Justice of Appeal

The applicant acting in person