MD SOHIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 473/2020

[2021] HKCA 638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 473 OF 2020

(ON APPEAL FROM HCAL NO 688 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 3 September 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 12 April 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 16 October 2015 and 25 January 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of India.  He entered Hong Kong on 5 April 2014 as a visitor and was permitted to remain until 19 April 2014.  He overstayed and was arrested on 28 April 2014. He lodged a non-refoulement claim on 29 April 2014. 

4.  The applicant’s claim was based on threats from a man known as Sikandar who was said to be an influential man and a person convicted of murder.  His case was summarised by the Judge in [1]-[3] of the Form CALL-1^[1].

5.  By his decision dated 16 October 2015 (“the Director’s Decision”), the Director rejected the applicant’s claim having regard to the BOR 3 risk^[2], the torture risk^[3] and the persecution risk^[4] grounds.

6.  By a Notice of Further Decision dated 25 January 2017, the director also assessed the applicant’s claim based on the BOR 2 risk^[5], and decided against him.

7.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 3 March 2017, the Board dismissed the appeal on 12 April 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  Primarily, the Board found that the applicant’s information was incredible and conflicting.  The Board was also satisfied that state protection would be available for the applicant and that internal relocation would be viable. 

The Judge’s Decision

8.  The applicant filed a form 86 on 20 April 2018 which contained no ground for seeking relief. 

9.  In his affirmation in support of the leave application filed on the same day, the applicant contended that:

(1)  He was not made aware of the Further Decision; and

(2)  There was no translation of the Board’s Decision.

10.  The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on paper.

11.  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 to extend time and leave to apply for judicial review at [10] to [14] of the Form CALL-1:

“10. Even if it is true that the Board’s decision had never been interpreted to him, and I do not accept that it is as I note that his present application and supporting affirmation are both in English and hence he would have had legal or interpretation assistance regarding the Board’s decision, that complaint in itself cannot form any valid or proper ground for judicial review of the findings of the Board in rejecting or dismissing his claim, nor is it reasonably arguable for his intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant’s case, in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by him, I do not find any reasonably arguable basis to challenge the finding of the Board. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal

12.  By a Notice of Appeal filed on 14 September 2020, the applicant stated that (sic):

“I would like to requested court could you please save my life as human been I can’t go back to my home land in India’s everyone knew very critical position in Indian Muslim they are suffering that’s why I am request court safe my life Hong Kong peace and save country”

13.  In the affirmation dated 14 September 2020, the applicant exhibited the decision of the Judge.

Skeleton Submissions

14.  The applicant failed to comply with the direction made by this Court on 21 January 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance. 

15.  The hearing date on 26 April 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the Court. 

Discussion

16.  The only ground of appeal set out in the Notice of Appeal is that it is unsafe for him to return.  The applicant did not identify any error on the part of the judge.  The applicant did not advance any viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

17.  As for the bare assertion by the applicant that it is unsafe for him to return, we note that the Board dismissed his claim because his evidence was not credible.  The Board also found that state protection would be available and internal relocation would be viable.  As the applicant failed to substantiate any public law error in the Board’s Decision, there is no basis for the applicant to challenge the above findings by the Board.

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