RE MOHAMMED MOINUDDIN

CACV 173/2020

[2020] HKCA 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2020

(ON APPEAL FROM HCAL 210/2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 3 June 2020 refusing leave to the applicant 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 (“Board”) dated 25 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 29 May 2015 and 7 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 21 March 2008 as a visitor and was permitted to remain until 11 April 2008.  He overstayed and was arrested on 16 April 2008.  He lodged a non-refoulement claim on 26 April 2008.

3.  The applicant’s claim was based on threats from his creditor.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 29 May 2015 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 7 June 2017, the director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  He was absent from the two hearings before the Board.  The Board dismissed the appeal on 25 January 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [22] of the Board’s Decision, the Board found that the applicant has failed to satisfy the Board that he was providing truthful and reliable information on the existence of the alleged loan and his appeal could be dismissed on that basis alone.  The Board was also satisfied at [26] that state protection would be available for the applicant and at [30] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a form 86 on 12 February 2018 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 12 February 2018, the applicant deposed that:

“I would like to request for judicial review against Director of Immigration. My life in my country India not safe I am so much afraid kindly look in to matter…”

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

11.  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 [12] to [18] of the CALL-1 Form:

“12. On 12 February 2018 the Applicant filed his Form 86 in which he stated was for judicial review of the decision of the Director of 5 February 2018, but clearly neither of the two decisions of the Director was made on that date and instead much earlier on 29 May 2015 and 7 June 2017 respectively, and which are in any event not susceptible to judicial review once the Applicant had pursued his appeal to the Board: see Re Moshsin Ali [2018] HKCA 549.

13. As such I am prepared to treat his application as one for judicial review of the Board’s decision of 25 January 2018, but no ground for seeking relief was given in his Form, or in his supportive affirmation of the same date in which he merely stated that he wanted to apply for judicial review because his life is in danger in India. In the absence of any legal error or procedural unfairness in the Board’s decision being shown by the Applicant, I am unable to see any prospect of success in his intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the analysis and reasons set out in paragraphs 15 – 23 of its decision, and in the absence of any oral evidence to substantiate the claim due to the Applicant’s failure to attend the scheduled oral hearings without any explanation, I do not find any reasonably arguable basis to challenge the finding of the Board.

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

17. In the premises and having considered the Board’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

18. 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.”

Grounds for appeal

12.  In the Notice of Appeal dated 12 June 2020 the applicant contended that:

“[the judge] failed to show any good cause to refuse my leave. So I do not agree with him. As I want to appeal against that refusal.”

13.  In his skeleton submissions dated 22 October 2020, the applicant explained why it was unsafe for him to return.  He alleged that he attended a hearing before the Board and answered questions correctly but the lady adjudicator did not believe him.  He further contended that:

“After [the Board’s Decision] I had no way, I came to the High Court for leave to apply for judicial review, I could not find and could not point the error of law by Director or Adjudicator, so one by one all stage of High Court refused my leave application.”

14.  The applicant agreed by a letter of 12 June 2020 that the appeal could be heard by two judges.  The appeal was set down for hearing on 24 November 2020 but the applicant had failed to appear.

Discussion

15.  The applicant had contended, in his written submissions, that the judge dismissed his application for leave for judicial review without cause.  The judge had already given his reason for dismissing the application at [12] – [18] of CALL-1 Form and that is the failure by the applicant to identify any public law error in the decisions by the Board and the Director.  The applicant has in fact accepted that was the case in the skeleton submissions dated 22 October 2020.  We therefore consider that the judge was correct in dismissing the application on this basis.

16.  The applicant further contended, in his written submissions, that he attended a hearing for the appeal to the Board before a “foreign lady” and that she asked him some questions.  From the records of the Board, the appeal/petition was determined by Mr Chow Siu- hung and the applicant had failed to appear at the two hearings before the Board.  The assertion by the applicant that he attended a hearing before the Board was therefore entirely inconsistent with the records of the Board.  In any event, the applicant has failed to provide sufficient particulars for the assertion that the Board wrongfully disbelieved him and this ground is bound to fail.

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