RE MOHAMMED FAHEEM

CACV 356/2018

[2019] HKCA 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 356 OF 2018

(ON APPEAL FROM HCAL 707/2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Campbell-Moffat J given on 27 July 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 29 September 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 8 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 7 March 2014 as a visitor.  He overstayed and surrendered to the authorities on 22 September 2014. He lodged a non-refoulement claim on 29 October 2014. 

3.  The applicant’s claim was based on threats from a creditor from whom he had borrowed money.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 8 May 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 19 September 2017, the Board dismissed the appeal on 29 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [30] of the Board’s Decision, the Board found that the applicant’s case was not credible.  It did not go on to consider matters such as availability of state protection or availability of internal relocation, as it was unnecessary for it to do so in light of its rejection of the applicant’s case for lack of credibility

The judge’s decision

6.  The applicant filed a Form 86 on 3 October 2017 which contained no ground for seeking relief. 

7.  In the affirmation in support of the leave application dated 3 October 2017, the applicant deposed that:

“I cannot go back India because the man Mr Mohammed Mudasir still looking me he go my home with people and asking my mother where is Faheem if he not give my money he cannot come back home I will kill him one of my friend tell me after I call in my home to my mother tell me also she say don’t come here he is very angry to you…”

8.  The applicant did not request an oral hearing before the judge, who thus dealt with the application on paper.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [13] of the CALL-1 Form:

“9. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the Applicant failed to submit any grounds of review, I have considered the papers, grounds and submissions carefully. The Applicant’s case on the face of it has many significant weaknesses quite apart from the issue of veracity. This was a private dispute in which the Applicant allegedly failed to repay a considerable debt and there was at no time any suggestion of improper intervention by any state controlled organisation and there was no evidence in support of the claim save for the Applicant’s oral testimony. Neither the Director nor the Adjudicator believed that the Applicant operated a business or borrowed the money alleged to be the subject of the loan because the Applicant had little or no idea as to the basis for securing the original loan or how he was to expand the business as he alleged. The Director and Adjudicator explained in detail why they had not believed the Applicant on this issue. It was fatal to his case.

12. The Director went on to give the Applicant the benefit of the doubt and considered all aspects of his claim and gave reasons for rejection. The Adjudicator did not. Having found the Applicant to be wholly incredible, he did not feel it necessary to give the Applicant the benefit of the doubt and nevertheless consider the claim as if he had found otherwise. Whilst the latter course may have been an approach which would have left the Applicant in no doubt that his claim was without merit, there is no requirement for the Adjudicator to do so on these facts and he did not act unreasonably in so doing. He fully explained the course he took and his reasoning. Nor did he act in a procedurally unfair manner as he had given the Applicant every opportunity to address the issues of concern.

13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review.  Even if, the Applicant were able to show that the Adjudicator should have given him the benefit of the doubt and gone on to consider his claim under all heads, there is no doubt that his claim, at its highest, had no prospect of success and, as such, there would be no realistic prospect of success if he were to be granted leave now.  I therefore refuse leave for judicial review.”

Grounds for appeal

10.  The applicant filed a Notice of Appeal dated 31 July 2018, in which he contended that:

“… the Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

11.  In his skeleton submissions dated 27 December 2018, the applicant stated that his business partner had vowed to kill him.  He also submitted that the Indian authorities are corrupt and cannot protect him.

12.  The applicant also complained about the fact that he was initially given to understand that his application had been allowed, as the sealed order dated 27 July 2018 so indicated, only to later be told in early November 2018 that it had in fact been dismissed (as was in fact apparent from the CALL-1 Form).  It is unfortunate that the judge’s order was initially wrongly drawn up.  However, we note that the applicant would appear to have understood from the outset that his application had failed, as he lodged his Notice of Appeal promptly on 31 July 2018, four days after the CALL-1 Form and Order were issued, and his appeal has proceeded in the normal way thereafter.

13.  We heard the appeal on 29 January 2019.

Discussion

14.  We observe first that none of the arguments relied upon in the Notice of Appeal, or the skeleton submissions, were raised as grounds for judicial review before the court below.  It is not open to the applicant to raise such grounds on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)). 

15.  Further, on appeal to this court, it is necessary for the applicant to identify some error on the part of the court below that would call for the intervention of the Court of Appeal.  No such error has been identified in either the Notice of Appeal or the skeleton submissions.  The only complaints in the skeleton submissions are:

(1)   that the applicant will be killed if he is returned to India; and

(2)   that the court failed properly to assess the situation in India in relation to lack of state protection.

16.  None of these matters are valid grounds of appeal.  The first is a disagreement with the assessment by the Director and the Board of the risk faced by the applicant.  It is well-established that this assessment is one for the Director and the Board to make, and one with which the court hearing an application for judicial review will not interfere absent any procedural impropriety or error of law, neither of which has been shown here.  The second point, regarding the availability of state protection, was not in fact an issue raised in the application for judicial review and thus did not need to be considered by the judge, as the Board had rejected the claim for lack of credibility and had not in fact gone on to consider the issue of state protection.  As such, the Board did not have to consider COI relating to India, and nor did the judge.

17.  The applicant also referred in his skeleton to the error in the initial order issued by the court below. However, as explained in paragraph 12 above, while unfortunate, this did not have any impact on this appeal.    

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.