RE AS

CACV 93/2018

[2018] HKCA 578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 93 OF 2018

(ON APPEAL FROM HCAL NO. 274 of 2017)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  On 27 July 2018, this Court (Chu and Barma JJA) handed down our judgment (“the Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge M Ng (“the Judge”) given on 22 March 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 30 July 2018, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

3.  In the Notice of Motion, the applicant requested for an oral hearing.  Under paragraph 3 of Practice Direction 2.1 on Application for Leave to Appeal to the Court of Final Appeal filed in the Court of Appeal in Civil Cases, applications for leave to appeal to the Court of Final Appeal shall be dealt with and determined on paper unless the court directs otherwise.  Having considered the Notice of Motion and the applicant’s written submission, we do not see any reason to depart from the usual practice.  We are of the view that the application can be properly disposed of without an oral hearing, and have proceeded to consider the application on paper.  We now hand down our judgment.

4.  Under section 22(1)(b) of the Court of Final Appeal Ordinance, cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  The Notice of Motion raised the following specific grounds (at paragraphs 1 to 5):

(1)   Although the notes of guidance referred to in Form 86 stated that the court may determine an application for leave to bring judicial review without a hearing unless this is requested for in the Form 86, the applicant cannot understand the English language. The lack of oral hearing for his application for leave to apply for judicial review has resulted in prejudice or unfairness because the Judge had gone in the wrong direction and he did not have an opportunity to explain himself in his first language.    

(2)   The applicant does not understand why evaluation of evidence could not be determined by the court or the meaning of an error of law.  The applicant’s case was determined unfairly and in violation of legal principles, and the court should intervene.

(3)   The Director and the Board were wrong in their findings on credibility in that on the totality of the evidence, the applicant’s case should stand.  Although there were some discrepancies, the events happened long time ago and the applicant was bewildered and frightened and he should be given the benefit of the doubt as long as the centrepiece of the story stood.  Given that he had produced photographs showing the scars on his body, the authority should not have concluded that they did not support any real risk of torture/ill-treatment upon his return to Pakistan.

(4)   The cases on high standard of fairness were outdated in that they were determined in 2004 and 2009 before the implementation of the Unified Screening Mechanism when there were only torture claims.   

(5)   The Director assessed the BOR 2 ground separately and invited the applicant to submit additional facts.  This is contrary to the Court’s view that there was no additional basis for advancing a case on the BOR2 risk ground separate from the other grounds.

6.  Firstly, in all these grounds, the applicant is basically reiterating his grounds of appeal against the Judge’s decision.  They relate only to the circumstances of the applicant’s case and do not involve any question of great, general or public importance.  

7.  Secondly, there are no merits in these grounds.  In respect of Ground (1), which is directed at the determination of the applicant’s leave application without an oral hearing, this was already dealt with in [18] of the Judgment.  As for the applicant’s assertion that he cannot understand English, it is clear from the papers filed in the court below and in this appeal that he has access to, and has been given, language assistance and support in the conduct of the court proceedings.  We note also that his affirmation in support of the application for leave did not contain an interpretation clause.  In any event, whatever was the reason for it, given that there was no request for an oral hearing in the Form 86, the Judge cannot be faulted for following the procedure in Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A and determining the application on paper.   

8.  As for Grounds (2) and (3), which relate to the applicant’s complaints against the evaluation and evidence and findings of credibility by the Director of and the Board, we had set out in [19], [20] and [24] of the Judgment the relevant legal principles and our reasons for rejecting the applicant’s grounds of appeal.  It is trite law that judicial review does not operate as an appeal from the Board’s decision.  The Court in judicial review applications exercises a supervisory jurisdiction and may only grant relief if it is demonstrated that there is error in law or procedure in the Board’s decision or unfairness in the process by which the Board reaches its decision.  For these reasons, evaluation of evidence and assessment of credibility and merits of a non-refoulement claim are matters for the Director and the Board, who are the primary decision-makers.  As we pointed out in the Judgment, there is no proper basis for the court to interfere with the Director’s or the Board’s finding of credibility.

9.  Concerning Grounds (4) and (5), both of which relate to the applicant’s complaints against the determination of his non-refoulment claim under the BOR 2 risk ground, we had in [21] and [22] of the Judgment given our reasons for rejecting his ground of appeal.  Although the Court of Final Appeal’s and the Court of First Instance’s decisions on the high standard of fairness (Sakthevel Prabakar v. Secretary for Security (2004) 7 HKCFAR 187, FB v. Director of Immigration [2009] 2 HKLRD 346) were made in 2004 and 2008, they had been considered and explained by this Court in a number of cases decided in 2018 (see for instance the cases cited in [21] of the Judgment).  The fact that the Director invited the applicant to submit additional facts (if any) relevant to a BOR 2 risk assessment is no indication of whether the applicant’s claim could succeed under the BOR 2 risk ground.  Even if the Board were to accept the applicant’s case was true, it still could not meet the legal threshold for a BOR 2 risk claim.

10.  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision. 

11.  For the reasons set out above, the applicant has failed to meet the threshold imposed by section 22(1)(b) to enable him to obtain leave to appeal to the Court of Final Appeal. Accordingly, we dismiss the Notice of Motion.