RE HOSSAIN SHAHBAZ

CACV 180/2018

[2018] HKCA 601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 180 OF 2018

(ON APPEAL FROM HCAL 948/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 18 May 2018 refusing leave to apply for judicial review. 

2.  Due to the non-compliance with an unless order, the appeal is processed on the papers based on materials already lodged.

Background

3.  The applicant is a national of India.  He entered Hong Kong on 4 June 2014 with a permission to remain as a visitor until 18 June 2014.  He overstayed illegally.  He was arrested by the police on 19 August 2014.  He lodged his claim for non-refoulement protection on 21 August 2014.  His claim was based on the fear that, if he returned to India, he would be harmed or mentally tortured by his uncle and his three cousins because of a land dispute among them.

4.  By a notice of decision dated 27 June 2016, the director rejected the applicant’s non-refoulement claim.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  The director also assessed the applicant’s claim based on the BOR 2 risk[4]. By the notice of further decision dated 10 July 2017, the director determined the risk against the applicant.

6.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 3 October 2017, and the applicant gave evidence in the hearing.  While the board accepted that there was a personal problem between the applicant and his uncle and cousins, it found that the applicant’s evidence on the key aspects of the claim was inconsistent, vague and exaggerated.  The board was not satisfied that the applicant would face a genuine and substantive risk of being subjected to ill-treatment if he returned to India.  The board also rejected the applicant’s contention that he could not be relocated since he would have to pay for his own rent and food.  The relevant country of origin information (“COI”) also indicated that state protection would be available to the applicant.  The board dismissed the appeal on 14 November 2017.

The decision of the deputy judge

7.  On 24 November 2017, the applicant applied to the court for leave to apply for judicial review.  While the form 86 did not contain any grounds for seeking reliefs, the applicant advanced the following grounds in his supporting affirmation dated 24 November 2017:

(a)  The director and the board failed to conduct sufficient inquiry in relation to the relevant COI conditions;

(b)  The director and the board failed to consider the psychological impact of the threats made against the applicant;

(c)  The board erred in accepting that the applicant’s problem was a personal problem; and

(d)  There was insufficient basis to conclude that he would not be subjected to torture and or cruel and inhuman treatment or punishment upon refoulement.

8.  The deputy judge heard the application on 16 April 2018 and refused to grant leave to apply for judicial review on 18 May 2018.  The deputy judge’s reasons in refusing leave to judicial review were set out in paragraphs 12-15 of the CALL-1 form, which is published as [2018] HKCFI 1047 of the Judiciary Legal Reference website.

The appeal

9.  The applicant filed his notice of appeal on 24 May 2018.  In the notice of appeal, the applicant stated that:

“ … the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal 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.” (sic)

Discussion

10.  Before we addressed the grounds of appeal, it is necessary to highlight the following general propositions:

(a)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the director and the board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the board, see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(b)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong, see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(c)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the board afresh as if it is a fresh application for judicial review.

11.  In the present case, the deputy judge, after rigorous examination and anxious scrutiny, did not find any legal error or procedural unfairness in the proceedings before the director and the board.  The deputy judge could find no reasonably arguable basis to challenge the director’s or the board’s findings.

12.  In the appeal, the applicant did not advance any effective arguments against the analysis of the deputy judge.  Having considered the materials available before us, we cannot find any error in the deputy judge’s analysis either.  We agree with the deputy judge that leave should not be granted to the applicant to apply for judicial review.

13.  We dismiss the appeal accordingly.