MOHAMMED FAROOK MOHAMMED IFTHIKAR v. TORTURE CLAIMS APPEAL BOARD

CACV 217/2023, [2023] HKCA 1236

On Appeal from [2023] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 217 OF 2023

(ON APPEAL FROM HCAL NO 1257 OF 2019)

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JUDGMENT

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 3 July 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 29 March 2019, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 2 September 2016 and 14 September 2017.

BACKGROUND

2.  The Applicant is a national of Sri Lanka.  He arrived in Hong Kong on 27 August 2007 as a visitor with permission to remain until 10 September 2007. He did not depart after the expiry of his limit of stay, and overstayed illegally in Hong Kong.  He was arrested by the police on 12 March 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim, which was later taken as a non-refoulement claim, on the basis that if he was refouled, he would be harmed or killed by some local gangsters for failing to disclose the whereabouts of his brother whom they claimed to have stolen their money and run away.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 2 September 2016 and a Notice of Further Decision dated 14 September 2017 (collectively “the Director’s Decisions”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decisions to the Board.  On 29 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decisions (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §9 of the CALL-1 Form, as follows:

“In its decision the Board found vagueness, inconsistencies and discrepancies in the Applicant’s evidence in important aspects of his claim that it doubted his claim of fear of harm from those local gangsters that caused him to leave his country to come to Hong Kong, which was further undermined by his failure to raise his claim upon first arrival in Hong Kong until 6 months later and only after he was arrested by police, and concluded that none of his claims are credible and that accordingly he had failed to establish any substantial ground for believing that he will face any real risk of harm or ill-treatment upon his return to Sri Lanka that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.  On 9 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No proper ground for seeking relief was given in the Form 86 or in his affirmation filed on the same date.

6.  On 3 July 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[10] On 9 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

[12] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 64 - 80 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions from his lawyer, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

[13] Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[14] In the premises and having considered 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.”

THIS APPEAL

7.  In his Notice of Appeal dated 12 July 2023, the Applicant stated the following:

“I am submitting this grounds regarding my judicial review was dismissed by High Court without any hearing. I need explain my problem properly in my oral hearing and I will explain with my supporting document about my problem.” [sic]

8.  In his 2-page undated written submissions, the Applicant stated that there were still problems in his own country and his enemies were powerful.  He also attached 3 pages of document to his written submissions, consisting of a copy of a warrant of arrest dated 18 February 2008 and two recent news articles relating to incidents of violence in Sri Lanka.

9.  At the hearing of the appeal, the Applicant stated that he would try to get more documents to support his claim, but it was difficult to do so because he only had his wife and his mother in Sri Lanka.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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 in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

11.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.  The Applicant did not put forward any ground of judicial review in the Form 86 or his supporting affirmation.  He is not entitled to raise new grounds in support of his application for leave to apply for judicial review, or rely on them as grounds of appeal against the Judge’s decision.  As for the Applicant’s complaint that the Judge dismissed his application for leave to apply for judicial review without any hearing, the Applicant did not request for an oral hearing of the application, and the Judge was entitled to deal with the application on paper.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review.  We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

13.  The Applicant’s appeal against the Order has no merit and is dismissed.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.