RE MOHAMMED MOINUDDIN

CACV 413/2018

[2019] HKCA 15

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 413 OF 2018

(ON APPEAL FROM HCAL NO. 989 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 10 August 2018, refusing to grant leave to the applicant to apply for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 16 October 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 2 January 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 papers 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 [2018] HKCFI 1568.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of India.  He first came to Hong Kong on 9 July 2014 and was allowed to stay as a visitor until 23 July 2014.  He did not leave and had overstayed since 24 July 2014.  He was arrested by the police on 6 August 2014.  On 18 April 2016, he lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by his creditor Mafizur Rahman (“MR”) and his subordinates who were powerful and influential in India because he was unable to repay the loan.

5.  By a Notice of Decision dated 9 September 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 3 risk, torture risk and persecution risk.  By a Further Notice of Decision dated 7 August 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against him.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decision.  After an oral hearing on 18 September 2017, the Board dismissed the appeal on 12 October 2017.  The Board found that the applicant’s account of circumstances surrounding the loan such as the terms of repayment and the reason why the applicant defaulted payment that caused the dispute with MR was unconvincing and inconsistent.  The Board accepted that the applicant did take out a loan from MR but pointed out that there was nothing in his account that suggested involvement or acquiescence by the police and the Indian government. The Board further found that reasonable state protection would be available to the applicant upon his return to India, and that there were viable options for the applicant to relocate to other areas within his home state.  As such, the Board found that the applicant failed to establish his non-refoulement claim under all applicable grounds.

The Judge’s decision

7.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 1 December 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant put forward the following grounds against the Director’s and the Board’s decisions:

(1)   the Board failed to consider his claim properly and treated his case lightly;

(2)   the Board had committed error and misdirection in law by failing to treat the appeal as a rehearing of his case;

(3)   the Board had failed to make an independent assessment of the relevant COI in considering if state acquiescence existed in his case;

(4)   there were procedural impropriety and errors of law in the decisions of both the Director and the Board in rejecting his claim and dismissing his appeal.

8.  On 10 August 2018, 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 [12] – [16] for his refusal to grant leave:

“12. These are all just very broad and vague assertions of the applicant without providing any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the Board had erred in their decisions, or why is the concept of state acquiescence relevant to his case in the absence of any evidence of any involvement of the state or police in his dispute with MR. The applicant simply failed to give any explanation or elaboration for any of his grounds or complaints, and that it is also wrong for him to complain that the Board failed to treat his appeal as a rehearing as it is clear from its decision that the Board indeed treated his appeal as a rehearing of his claim.

13. As it has clearly been established by both the Director and the Board in their decisions that the risk of harms from the applicant’s creditor is a private and localized one and that it is not unreasonable or unsafe for him to relocate to another part of India, there is simply no justification to afford the applicant non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

14. I should also note that although the court did pursuant to his request schedule an oral hearing for the applicant’s leave application, but as he failed to attend for which he subsequently explained in a letter to the court that as he had been fasting and praying in early morning everyday that he overslept on the day of the scheduled hearing and requested for another oral hearing. I do not accept that it is a valid reason for his failure to attend the scheduled hearing, and given that he declined to add anything to his claim during his oral hearing before the Board, his failure to elaborate any of his proposed grounds for his intended application, I do not see any justification to delay the matter by scheduling another oral hearing in the circumstances, and proceeded to deal with the applicant’s leave application on papers.

15. In the premises and having proceeded to consider 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.

16.  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.”

The Appeal

9.  The applicant filed the Notice of Appeal on 23 August 2018 in which he set out the following grounds of appeal:

“There is an appeal for the decision of legal aid and would like the case to be against with that is over.”

Discussion

10.  The ground of appeal is the applicant’s complaint about the rejection of his application for legal aid and it does not constitute viable ground for reversing the Judge’s decision.  In any event, we agree with the Judge’s conclusion that there was no error of law or procedural unfairness on the part of the Director and the Board or any failure on their part to adhere to the high standard of fairness in their consideration and assessment of the applicant’s claim.  We can see nothing amiss in the Judge’s reasons for refusing to grant 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.