RE MOHAMMED SHAFIQUE

CACV 400/2018

[2018] HKCA 984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 400 OF 2018

(ON APPEAL FROM HCAL 758/2017)

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

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

___________________

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 Woodcock given on 10 August 2018 refusing leave 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 dated 4 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 25 April 2016 and 3 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 23 June 2014 as a visitor.  He was permitted to remain for 2 days.  However, he overstayed and surrendered to the police on 4 August 2014.  He lodged a non-refoulement claim on 5 August 2014.

3.  The applicant’s claim was based on threats from his creditor.  The details of the applicant’s claim have been summarised by the judge at [2] to [9] of the CALL-1 Form.

4.  By a Notice of Decision dated 25 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 3 July 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 10 July 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 4 August 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [43] of the Board’s Decision, the Board held that on the totality of evidence, the applicant’s intention to seek protection in Hong Kong is suspicious.  The Board was also satisfied at [55] that state protection would be available for the applicant.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 12 October 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 12 October 2017, the applicant advanced various grounds for judicial review against the Board and the Director which are summarised below:

(1)   they failed to explain why they preferred those Country of Origin Information (COI) material which are opposite to the applicant’s assertion;

(2)   they failed to critically analyse the COI material;

(3)   they cherry-picked COI;

(4)   they failed to consider the applicant’s fear of the risk of harm from the applicant’s enemy;

(5)   they failed to consider the severe pain and suffering that may be inflicted by the applicant’s enemy;

(6)   they failed to consider the concept of extended state acquiescence; and

(7)   there was insufficient basis to support the conclusion that there was no BOR 3 risk, also there was a failure to give reasons for this conclusion.

10.  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 [18] to [27] of the CALL-1 Form:

“18. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and adjudicator’s decision to be without fault. They analysed material, claims and evidence carefully. The applicant’s grounds and complaints are not made out. I find no substance in the grounds of this application; they are not substantiated.

19. After a reading of the applicant’s affirmation, it would appear that the applicant has the following grounds against both the decision makers. There are no particulars in his affirmation to support any grounds.

20. The first ground is that there was a failure by both to conduct sufficient enquiry into relevant COI, a failure to explain why there is a preference for particular COI over other COI and a cherry picking of COI. With a lack of particulars from the applicant there is no merit in this ground particularly when both decision-makers clearly do refer to objective and relevant COI.

21. In the same ground/paragraph, the applicant accuses the Director of not conducting any interview before rejecting his BOR 2 risk. In his decision, the Director notes the applicant had no further information to submit and there is no complaint in his appeal before the TCAB that he was deprived of a further interview by the Director. Moreover, it is clearly not part of his case that his rights under BOR 2 were in danger of being violated.

22. In the second ground, both decision-makers are accused of failing to consider his other enemies who want to kill him and the fact he still cannot walk properly now. Without further particulars, I can only assume he means those four who attacked him and his friends when he suffered a broken leg in 2010. He himself has admitted they are not linked to his creditor and their grudge was also of a personal nature and did not extend beyond 2010. There is no merit in this ground.

23. In the third ground the Director and adjudicator are said to have failed to consider the extended concept of State acquiescence. This applicant did not rely on the extended concept of State acquiescence. The applicant only made one report to his local police station but was unable to give any details such as the name, rank or post of the police officer in charge. He did not report it to any higher authority in India. The adjudicator did consider passive and active acquiescence. This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons. There is no merit in this ground.

24. In the fourth ground the Director is accused of failing to give reasons for his finding that the applicant is unable to invoke the protection of BOR 3 but a reading of his decision shows otherwise; full reasons are given and I find no merit in this ground. I am satisfied both the Director and the adjudicator gave sufficient reasons.

25. In the fifth ground the Director and adjudicator are said to have failed to consider the psychological impact of the threats on him and the applicant’s family. This was not part of his case nor was there any obvious evidence that he suffered any psychological impact. There is no merit in this ground.

26. I do not find any ground that shows there was an error of law by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

27. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 16 August 2018 the applicant said that “There is an appeal for the decision of legal aid and would like the case to be against with that is over”.

12.  In his skeleton submissions dated 15 November 2018, the applicant repeated various maters relevant to his non-refoulement claim, included copies of page 2 to 4 of the CALL-Form, and essentially repeated the relief sought by the intended judicial review.

13.  The applicant agreed by a letter of 16 August 2018 that the appeal could be heard by two judges.  We heard the appeal on 13 December 2018.

Discussion

14.  We agree with the decision by the judge that there is no merit in the applicant’s application.  So far as the only ground of appeal contained in the Notice of Appeal is concerned, legal aid is processed on the basis of a merit test.  In light of the obvious lack of merit in the applicant’s case, the Director of Legal Aid was entitled to refuse legal aid.  In any event, the existence of a legal aid appeal per se is not a ground for appealing against the judge’s decision.

15.  The matters in the skeleton submissions do not take the applicant any further.  His protestations that his life would be at risk if he were returned to India cannot assist him before this court, where the focus is on the decision of the court below and not on the underlying facts, which are for the Director and Board to determine.  As noted in paragraph 12 above, the other parts of his skeleton submissions do not set out any viable grounds of appeal.

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