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Re Waseem Baig

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date05 November 2021
Neutral Citation[2021] HKCA 1640
Judgement NumberCACV323/2021
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV323/2021 RE WASEEM BAIG

CACV 323/2021

[2021] HKCA 1640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 323 OF 2021

(ON APPEAL FROM HCAL NO 2737 of 2018)

____________________

RE: WASEEM BAIG Applicant

____________________

Before: Hon Au JA and Lisa Wong J in Court

Date of Judgment: 5 November 2021

_______________

J U D G M E N T

_______________

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

1. This is an appeal against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 17 June 2021, refusing leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 1736.

2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 26 November 2018 (“the Board’s Decision”); the decision of the Director of Immigration (“the Director”) dated 26 February 2018 (“the Director’s Decision”); the Supplementary Claim Form dated 26 January 2018 (“the SCF”) and the Record of Screening Interview dated 13 February 2018 (“the Record”).

3. This appeal was listed to be heard on 12 October 2021. The applicant was directed to lodge two sets of skeleton argument on or before 14 September 2021 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper. The direction and the warning were communicated to the applicant by the Notice of Hearing dated 18 August 2021.

4. The requirement for lodging skeleton argument in an appeal is set out in 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 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.

5. As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.

Background

6. The applicant is a national of Pakistan. He entered Hong Kong illegally from the Mainland on 7 June 2011. He was arrested by the police and referred to the Immigration Department on 13 June 2011. He made a torture claim on 14 June 2011 which was rejected by the Director and the Board on 18 November 2018 and 1 February 2014 respectively. He raised a non-refoulement claim on 22 November 2017 on the basis that he would be killed or ill-treated by his uncle who objected to his proposed marriage with his uncle’s daughter if he returned to Pakistan. The factual details of the applicants’ claim were summarised by the Deputy Judge at [7] ‑ [9] of the Leave Decision.

7. By the Notice of Decision dated 26 February 2018, the Director assessed and rejected the applicant’s non-refoulement claim on all applicable grounds other than torture, namely, BOR2 risk[1], BOR3 risk[2], and persecution risk[3]. Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from his uncle upon his return to Pakistan as low. The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

8. On 12 March 2018, the applicant appealed the Director’s Decision to the Board. He attended an oral hearing before the Board on 19 September 2018 with the assistance of an interpreter who spoke Urdu and English and gave evidence. The Board dismissed his appeal on 26 November 2018. The Board found significant inconsistences in the details presented by the applicant at different times and was not satisfied that the applicant had told the truth about his reasons for leaving Pakistan. The Board was of the view that based on the COI, relocation would not be unduly harsh or unreasonable.

The Leave Decision

9. On 3 December 2018, the applicant filed a Form 86 together with a supporting affirmation for leave to apply for judicial review of the Board’s Decision, the Director’s Decision, the SCF and the Record.

10. The applicant attended an oral hearing on 10 June 2021 with the assistance of an Urdu interpreter. By the Leave Decision, the Deputy Judge observed and held that:

“Grounds for judicial review

12. The Applicant lodged a nine-page affirmation in support of his application. In essence, he disagreed with the finding of the Director in the Notice and the finding of the Board in the Decision. He complained about procedural unfairness, unfair weighting given on the COI, and bias on the part of the Director and the Board.

13. His complaint of procedural unfairness revolved around the lack of legal and language assistance. He said that he was not given legal assistance in preparation for the appeal before the Board and at the hearing of the appeal. He also complained that the majority of the documents in the appeal bundle were in English and without translation. He said the appeal bundle was never read back to him. He was at a loss in understanding the reasons for rejecting his case. As a result, he was also deprived of the opportunity to make a full application for leave to apply for judicial review.

14. In Re Zafar Muazam[4], Re Zunariyah[5], Re Zahid Abbas[6], Re Tariq Farhan[7], and Re Lopchan Subash[8], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[9] nor the judgment of FB v. Director of Immigration[10] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether he was prejudice by the lack legal representation.

15. The Applicant had the benefit of legal representation in presenting his case to the Director. He was not legally represented before the Board. However, all the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. The Applicant suffered no prejudice due to lack of legal assistance in preparing for the appeal and lack of legal representation before the Board.

16. The Applicant had the benefit of the interpretation services of a qualified interpreter in preparing his non‑refoulement claim form and at the screening interview and in presenting his case to the Director. He also had the services of a qualified interpreter at the oral hearing before the Board. The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI. He certainly knew what were in the non-refoulement claim form prepared by him and the record of the screening interview which he attended. The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than...

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