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CACV 2/2021
[2021] HKCA 1239
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 2 OF 2021
(ON APPEAL FROM HCAL NO. 1439 of 2018)
__________________________
| RE |
MOHAMMED ASGAR |
Applicant |
__________________________
Before: Hon Chu JA and Mimmie Chan J in Court
Date of Judgment: 27 August 2021
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JUDGMENT
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Hon Chu JA giving the Judgment of the Court:
Introduction
1. This is the applicant’s appeal against the decision of Deputy High Court C P Pang (“the Judge”) given on 23 December 2020[1] refusing him leave to judicially review the decision of the Director of Immigration (“the Director”) of 24 October 2017 rejecting his non‑refoulement protection claim and the decision of the Torture Claims Appeal Board (“the Board”) dated 13 July 2018 which dismissed his appeal against the Director’s decision.
2. The applicant has consented to his appeal being heard by two judges of the Court of Appeal.
3. The appeal is dealt with on paper without a hearing due to the non-compliance with the direction on the lodging of a skeleton argument as mentioned below.
The applicant’s non-refoulement claim
4. The applicant is a national of India of 48 years old. He arrived in Hong Kong on 25 April 2013 and was given permission to remain as a visitor for 14 days. He overstayed and surrendered himself to the Immigration Department and raised a non‑refoulement claim in May 2013.
5. The applicant’s claim was set out in detail in the Director’s first decision at [15] to [26] and the Board’s decision at [26] to [33] and summarized by the Judge at [3] of Form CALL-1. The applicant’s claim is based on his fear of being harmed or killed by a moneylender due to his failure to repay his loan. According to the applicant, he borrowed the loan to start a business. When he was unable to make repayment, the moneylender and his men threatened him, assaulted him and even tried to kill him. He claims that they are still looking for him.
The Director’s decision
6. Although two screening interviews were arranged, the applicant failed to attend them. The Director therefore proceeded to consider his claim on the basis of the non-refoulement claim form and the information available.
7. By his decision dated 24 October 2017, the Director rejected the applicant’s non-refoulement claim on the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds. The Director found the level of risk of harm from his perceived enemies was low, which was further lowered or negated by the availability of state protection and internal relocation options. The Director concluded that the applicant failed to establish his entitlement on any of the applicable grounds.
The Board’s decision
8. The applicant appealed the Director’s decision to the Board. The Board heard the appeal on 2 March 2018, during which the applicant gave evidence and answered questions from the Board.
9. By its decision dated 13 July 2018, the Board dismissed the appeal. The Board did not consider the applicant to be a truthful witness, having regard to the numerous and significant inconsistencies in his evidence over the central and core aspects of his claim. The Board was of the view that he had manufactured his claim and rejected his claim. The Board did not consider it necessary to consider state protection or internal relocation. The Board concluded there was no real risk of the applicant facing any form of harm under the applicable grounds, and that he had failed to make out a case for non-refoulement protection.
The intended judicial review
10. The applicant filed a Form 86 and an affirmation on 23 July 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. He did not put forward any ground for seeking relief.
The Judge’s decision
11. The applicant did not request an oral hearing before the Judge, who dealt with the leave application on papers. By his decision dated 23 December 2020, the Judge held that the intended judicial review has no reasonable prospect of success and refused to give leave to apply for judicial review. His reasons were set out at [18] to [21] of the Form CALL-1 as follows:
“18. The Form 86 and affirmation in support did not contain anything to demonstrate why the Board was unfair or unreasonable in the public law sense. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.
19. Indeed, even if one gives his account the most favourable interpretation, the alleged past ill-treatment was of low intensity and frequency demonstrating only a remote and unreal risk of future harm. It cannot be established that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.
20. On the evidence of the case, there cannot be any criticism of the decisions of the Director and the Board which are entirely reasonable.
21. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.”
The grounds of appeal
12. On 4 January 2021, the applicant filed a Notice of Appeal to appeal the decision of the Judge. He later filed a Supplemental Notice of Appeal dated 29 March 2021. His grounds of appeal may be summarized as follows:
(1) The applicant will face hardship if he returns to his home country. His problems are very severe and he has submitted all the proofs, but the Judge may not have analyzed his claim properly. The Judge’s decision was unreasonable.
(2) The Board has significantly relied on some sources of news and its own assumption, which are not officially recognized or are simply hearsay. It had also relied on cases and non-government organizations’ reports that are outdated considering the dramatic changes. The lack of credible source of information had resulted in it making groundless speculations.
(3) High standards of fairness are required. It must be borne in mind that the applicant’s life is in jeopardy and that the applicant’s fundamental human rights not to be subject to torture is involved.
Non-compliance with order to lodge skeleton argument
13. Directions were given by the Registrar of Civil Appeals on 28 April 2021 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper. The directions were communicated to the applicant by the court’s letter dated 29 April 2021.
14. The appeal was scheduled to be heard on 20 July 2021. The Notice of Hearing dated 17 May 2021 reminded the applicant to lodge his skeleton argument by 22 June 2021 and further, that should he fail to do so he would be deemed to waive his right to have an oral hearing and the hearing date would be vacated with the hearing being determined on paper.
15. The applicant failed to lodge a skeleton argument on or before 22 June 2021. The hearing date was accordingly vacated. By letter dated 29 June 2021, the court informed the applicant that the hearing date of 20 July 2021 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.
Legal Principles
16. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.
17. 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. Assessment of evidence, of country of origin information materials and risks of harm, the availability of state protection and the viability of internal relocation are primarily within the province of the primary decision makers. 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, and/or in the process by which the decision was made.
18. 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 decision of 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 was a fresh application for judicial review.
Our reasons for decision
19. The matters put forward by the applicant in his Notice of Appeal and Supplemental Notice of Appeal are not viable grounds to reverse the Judge’s decision. In the first place, the criticisms he now makes of the Board’s decision are new grounds, which were not raised in his Form 86 or his supporting affirmation. It is not open to him to rely on them now in appealing the Judge’s decision.
20. Secondly, even if we were to allow the applicant to rely on these new grounds, the criticisms made are misplaced. As pointed out above (see [9] above and [47] of the Board’s decision), the Board did not consider it necessary to consider the question of internal relocation or state protection. It had not referred to any country of origin information or considered the country conditions.
21. Thirdly, as pointed out above, it is not the task of the Court to conduct a fresh assessment of his claim. Assessment of credibility and risks of harm are within the province of the primary decision makers and are not matters for the Judge. Further and importantly, in light of the Board’s rejection of the applicant’s case and evidence, there is no credible evidence to support the applicant’s claim for non-refoulement protection.
22. We have examined the decisions of the Director and the Board, and do not discern any errors of law or procedural unfairness or irrationality in the decision of the Board. We agree with the Judge that the applicant’s intended judicial review has no prospect of success. There is no basis for the applicant’s complaint that the Judge had not carefully considered and analyzed his case.
23. For the above reasons, there is no merit in the applicant’s appeal. We therefore dismiss the appeal.
(Carlye Chu)
Justice of Appeal
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(Mimmie Chan)
Judge of the
Court of First Instance |
The applicant, unrepresented, acted in person.
[1] [2020] HKCFI 3077
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.
[5] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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