RE MOHAMMED SHANWAZ

CACV 548/2019

[2020] HKCA 278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 548 OF 2019

(ON APPEAL FROM HCAL NO. 2822 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.     This is an appeal against the decision of Deputy High Court Judge K. W. Lung (‘the Judge’) who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (‘the Director’) and the Torture Claims Appeal Board (‘the Board’).

2)  Background

2.1.     The applicant is a national of India.  He first arrived in Hong Kong as a visitor but subsequently overstayed and was arrested.  He then raised a non-refoulement claim on the basis that he would be harmed or killed by his creditor Mohammed Salaudin.

2.2.     The details of the applicant’s claim have been summarized by the Judge at [4] of the CALL‑1 Form.

3)  The Director’s Decision      

3.     The Director decided against the applicant’s claim on 13 October 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1.     The applicant appealed against the Director’s decision to the Board.  After a hearing held on 2 August 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 30 November 2018.

4.2.     The applicant stated before the Board that he adopted his evidence and had nothing to add.  The Board dismissed the applicant’s case based on an assessment of his credibility.  Despite the applicant stating that his business was ‘completely vanished’, he could not explain how it was possible for him to have the financial ability to arrive in Hong Kong twice as stated on his non-refoulement form.  The applicant claimed that he was poor and had to live in the park looking for food, but when the Board pointed to his gold watch he was wearing at the hearing, he merely said that it was given to him by a friend and gave an embarrassing smile.

4.3.     The Board also considered further and rejected the applicant’s case based on a lack of grounds under all four heads of risk: torture risk, persecution risk, BOR 2 and BOR 3 risk.  The Board further found that state protection is available, there was no state action involved and the applicant’s case was private in nature.  It also found that internal relocation was possible.

5)  Decision of the Judge

5.1.     The applicant complained before the Judge that :

(1)     he was not provided with language assistance;

(2)     he was not provided legal assistance for his appeal;

(3)     the Adjudicator of the Board did not consider his case afresh and he determined his case as one of the many cases he had dealt with;

(4)     he did not understand the Board’s Decision as no assistance was rendered to him; and

(5)     it was unfair to him as other applicants obtained legal assistance – breach of high standard of fairness.

5.2.     The Judge held that before even considering whether there was any lack of assistance from the government, it was clear that the applicant did not even take the initiative to seek help from the government.  There was no ground to complain.  The Judge held that there was no absolute right to free legal assistance at all stages of the legal process.  The Judge held that despite the Board’s comment on a similar case he had previously dealt with, the Board did not base the Decision solely on that alone but there was an assessment of the applicant’s case with reason.    

6)  Grounds of appeal

6.     In short, the applicant’s Notice of Appeal and written submissions contain the following grounds of appeal :

(1)     The Judge was procedurally unfair.

(2)     The significance of the lack of language assistance was that the government should have taken the first step to assist the applicant.  Similarly, the Judge should have investigated if he had been given legal assistance.

(3)     The Board’s gold watch analysis was irrelevant.

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 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 are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

7.3.     It is not for the Judge to take a ‘first step’ approach to investigate if the applicant had been given legal or language assistance.  The burden of proof falls squarely on the applicant to make his case of non‑refoulement: AM v Director of Immigration [2014] 1 HKC 416 at 427.

7.4.     The issue of the Board pointing to the applicant’s gold watch as a response to his case that he was impecunious was not irrelevant as the applicant alleged.  The Board was entitled to take into account the applicant’s response when he was being questioned in the assessment of his overall credibility.  In any event, the Board did not decide the applicant’s case on credibility alone, but gave detailed reasons why the applicant failed on all four grounds of his non‑refoulement claim.  Further, this is the claimant’s complaint against the Board, not the Judge.  It is not the role of the Court to examine the decision of the Board afresh.

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