RE ALI MUKADDAR

CACV 495/2018

[2019] HKCA 51

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 495 OF 2018

(ON APPEAL FROM HCAL 279/2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Campbell-Moffat J (“the Judge”) given on 26 September 2018 refusing leave to the applicant to apply for judicial review. 

2.  Due to the non-compliance with an unless order, the hearing for this appeal (originally listed for 3 January 2019) was vacated and this appeal is processed on paper based on the materials already lodged according to the practice adopted by this Court: see 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.

3.  This is our judgment.

Background

4.  The applicant is a national of India.  He entered Hong Kong on 20 August 2014 and was permitted to remain as a visitor until 3 September 2014. He did not depart despite the expiry of his permission to remain, and overstayed illegally.  He was arrested by the police on 7 September 2014 and lodged his claim for non-refoulement protection on 9 September 2014. 

5.  The applicant’s claim was based on two premises.  First, the applicant claimed that, if refouled, he would be harmed or killed by his creditor (who was a supporter of All India Trinamool Congress) because of his failure to repay the loan due to the creditor.  Secondly, the applicant alleged that, if he returned to India, he would be arrested by the police and falsely accused of being involved in a murder case.  The facts of this case were summarized by the Judge in [4] – [5] of Form CALL-1 (published as [2018] HKCFI 2009).

6.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, namely the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4] and determined the risks against the applicant.  By a notice of decision dated 3 July 2017, the Director rejected the applicant’s claim.

7.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of Non-Refoulement Claims Petition Office (“the Board”).  An oral hearing was held on 11 December 2017, in which the applicant elected to give evidence.  Having heard the applicant, the Board found that the applicant was not a reliable witness and his claim was not credible.  The Board found that there was no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatment if he returned to India.  The Board dismissed the applicant's appeal/petition on 9 February 2018.

The judge’s decision

8.  The applicant filed his Form 86 on 22 February 2018, seeking leave to apply for judicial review against both decisions of the Director and the Board.  In his affirmation dated 22 February 2018 in support of his leave application, the applicant complained about (a) the lack of language assistance at the oral hearing before the Board and (b) the lack of legal representation.

9.  The applicant did not request for an oral hearing for his application for leave to apply for judicial review.  After considering the papers available before her, the Judge refused to grant leave to apply for judicial review.  The Judge’s reasons in refusing leave were set out in [11] – [13] of Form CALL-1 as follows:

“ Grounds of review

11. There were limited grounds of review. The Applicant complains that he was unable to read the hearing bundle or the decision of the TCAB. He has not been provided with any assistance from the Duty Lawyer Service (“the DLS”) in respect of his appeal. The Applicant essentially asks for a re-hearing of his appeal. He has not complained of any other specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

12. The Applicant had the benefit of an interpreter and member of the DLS at his original screening interview on 23 June 2017, at which time he would have been able to seek advice form the DLS. He must have done so as his appeal was submitted just two weeks later. The Director of Legal Aid reviews all applications for legal aid on a case by case basis. He was entitled to refuse legal aid to an applicant whose case he considered unmeritorious, which he did in this instance. That should not have prejudiced the Applicant as matters had been fully canvassed just two weeks prior to his application and the Adjudicator explained to him the process before the hearing in December 2017. The Applicant was provided with an opportunity to answer questions, add information, make submissions or complain, if he felt it necessary but he did not do so. All of the relevant material was before the Adjudicator, who considered it properly. The Applicant does not suggest that the Adjudicator acted inappropriately in any way nor has he pointed to any consideration that was unfair, irrational or unreasonable. There are no merits in these grounds.

Conclusion

13. I have considered the papers and grounds carefully on behalf of the Applicant, who has complained that he is not in a position to know how to proceed with this application, being of limited educational background and foreign to Hong Kong.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.”

The appeal

10.  On 3 October 2018, the applicant filed a notice of appeal.  In it, the applicant stated that:

“ In the matter of Order 53 rule 3, I ALI MUKADDAR want to apply in Your Honour’s Court to see my case again Because my life is in Danger in my Country.” (sic)

11.  By a letter dated 3 October 2018, the applicant gave consent that this appeal be heard before a two-judge court.

General principles

12.  Before we address the merits of this appeal, we would highlight the following salient propositions that this Court has adopted in determining an appeal in non-refoulement cases:

(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 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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge below in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Discussion

13.  In the present case, the Board rejected the applicant’s claim based on its adverse finding on the applicant’s credibility.  Having carefully considered the papers and the grounds advanced by the applicant, the Judge found no reasonably arguable basis to challenge the findings of the Board.

14.  In this appeal, the applicant did not pinpoint any error in the Judge’s decision.  

15.  Having considered the materials available before us, we agree with the Judge’s observations.  We also agree that leave to apply for judicial review should be refused.

16.  For these reasons, we dismiss the appeal.