RE MOHAMMED SAHANAWAZ

CACV 285/2020

[2021] HKCA 362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 285 OF 2020

(ON APPEAL FROM HCAL NO. 2390 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge K. W. Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 16 July 2020.

1.2  This appeal was scheduled to be heard on 26 January 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 6 November 2020, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of India.  He entered Hong Kong legally but overstayed. He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by a creditor named Shiv Kumar for his failure to repay a loan.

2.2  The details of the applicant’s claim have been summarized by the Judge at [1] to [2] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 3 July 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 27 August 2018, the Board dismissed the applicant’s appeal against the Director’s Decision on 22 October 2018.

4.2  The Board found that although it was accepted that the applicant might have suffered minor physical assault when his creditors confronted him, there was no evidence to suggest that the applicant was seriously harmed.  The Board did not accept the applicant’s claim that he was hospitalized for six days following the assault.  There was no real risk of harm for the applicant to return to his home country from his creditors.  It was found that the applicant did not apply for protection at the earliest opportunity.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation.  He set out various grounds for review including :

(1)  The hearing bundle was given shortly before the hearing and he did not have sufficient time to prepare;

(2)  The bundle contents were in English;

(3)  The applicant was confused at the hearing;

(4)  The Board did not do sufficient research in country of origin information; and

(5)  The Board relied on source of information which was hearsay and the cases relied on were outdated.

5.2  The Judge held that before him, the applicant confirmed that he was legally represented before the Director and the hearing bundle was explained to him by his friend.  There was a lack of evidence to support the applicant’s allegations.   

6)  Grounds of appeal

6.  The applicant in his notice of appeal stated that he will face hardship if he returned to his home country. He stated that the Board relied on source of news which was not officially recognized or simply hearsay.  He stated that the Board relied on cases which were outdated.  As a result the Board had made ‘groundless speculation’ in its decision.

7)  Our view

7.1  We will repeat the approach of this Court in dealing with cases of this nature :

(1)  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 the 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 their decisions.

(2)  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 for 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.

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

7.2  In our view there is no merit in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

7.3  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.