RE MOHAMMAD MEHNDI HASSAN

CACV 62/2019

[2019] HKCA 773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 62 OF 2019

(ON APPEAL FROM HCAL NO. 638 OF 2018)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 30 January 2019, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 21 February 2019, the applicant was directed to lodge his skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 28 May 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 203.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of India. He came to Hong Kong on 27 July 2014 as a visitor and was allowed to stay until 10 August 2014.  He did not depart and overstayed since 11 August 2014. He was arrested by the police on 2 February 2015 and was then referred to the Immigration Department for investigation.  On 4 February 2015, the applicant lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by money lenders namely Aktar and Ledla as he failed to repay the loan to them.

5.  By a Notice of Decision dated 6 October 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 2 February 2018, the Board dismissed the appeal on 26 March 2018. The Board found inconsistencies and exaggeration in the applicant’s account of events about the assault and attempted killing by the money lenders for his failure to repay the loan.  There was also no reliable evidence of state instigation, consent or acquiescence of any form.  Further, after considering the relevant Country of Origin Information (“COI”), the Board concluded that reasonable state protection and internal relocation were available in any event.  With the aforesaid reasons, the Board dismissed the applicant’s claims for non-refoulement protection on all applicable grounds.

7.  On 13 April 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  As the Board’s decision had superseded the Director’s decision, the Judge only dealt with the grounds of complaints against the Board, namely:

(1)   failing to make a balanced consideration of the applicant’s submission against the Director’s decision and only adopting a formula approach in handling his appeal; and

(2)   lacking of language assistance and there might be wrong interpretation of certain documents in the appeal bundle that caused prejudice to his case.

The Judge’s decision

8.  On 30 January 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [35] – [42] for his refusal to grant leave:

“ Discussion

35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising 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.” (CACV 219/2018 [2018] HKCA 570, para 14(1)).

37. The Applicant complained the Adjudicator did not give a balanced consideration of his submission and did not properly evaluate his case. He accused the Adjudicator of adopting a formula approach in handing his appeal.

38. The Board's decision shows the Adjudicator considered the Applicant’s claim in detail. He had a balanced consideration of relevant COI before concluding reasonable state protection and internal relocation were available to the Applicant.

39. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

40. The Applicant complained there was a possibility that certain documents in the bundle might be prejudicial to him due to wrong interpretation/translation because he made his claim in Hindi. However, the Applicant could not point out the specifics.

41. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

42. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

The Appeal

9.  The applicant filed the Notice of Appeal on 4 February 2019 but he did not provide any grounds of appeal.

Discussion

10.  The applicant failed to put forward any ground of appeal to reverse the Judge’s decision.  We have reviewed the CALL-1 Form and endorse the Judge’s findings that the applicant’s case lacks merit and he had also failed to raise any valid ground to challenge the Board’s decision. We can discern no error of law or procedure, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave for judicial review.

11.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.