RE MOHAMED GANI

CACV 77/2022

[2022] HKCA 1392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 77 OF 2022

(ON APPEAL FROM HCAL NO 262 OF 2019)

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J U D G M E N T

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

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To (“the Deputy Judge”)  set out in the Form CALL-1 dated 4 February 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 383).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 15 January 2019 (“the Board’s Decision”)  and the decision of the Director of Immigration (“the Director”)  dated 15 February 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  On 15 February 2022, the applicant indicated his consent for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of India.  He first arrived in Hong Kong on 9 August 2015 and was permitted to remain as a visitor until 23 August 2015.  He did not depart and overstayed since 24 August 2015.  On 24 August 2015, he was arrested by the police and was transferred to Castle Peak Bay Immigration Centre for investigation on 25 August 2015.  On 27 August 2015, he raised a non-refoulement claim on the basis that he would be harmed or killed by a loan shark as he forced the applicant to surrender his house which was the security of his loan even after the applicant had already repaid the principal and interest.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] - [13] of the Leave Decision.

5.  By a Notice of Decision dated 15 February 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

6.  On 27 February 2018, the applicant appealed against the Director’s Decision to the Board.  The applicant attended the hearing before the Board on 18 December 2018.  The Board dismissed his appeal on 15 January 2019.  Having assessed the evidence, the Board considered that there were major discrepancies in the applicant’s oral and written evidence and did not find the applicant credible.  The Board found that there was no real and personal risk that the applicant would be subjected to harm under the applicable grounds as alleged.  The Board also found that state protection and internal relocation would be available to the applicant if he returned to India.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on the applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 28 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  As noted at [19] of the Leave Decision, the applicant advanced the following four grounds in support of his application:

(1)  the Decision is unreasonable and unfair; he was not given sufficient time and chance to arrange the relevant evidence;

(2)  the Director failed to give proper weight to the presence of state acquiescence and the fact that the Applicant was tortured at the behest of state law enforcement agencies and “those in the high up of political circles”;

(3)  the Director failed to take “such argument into account”; and

(4)  the unfair attitude of the Director.

8.  On 13 January 2022, the applicant attended an oral hearing before the Deputy Judge and a Hindi interpreter was present to provide language assistance.

9.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [21] - [25] of the Leave Decision:

“Ground (2)

21. The essence of the Applicant’s complaint is that the Board failed to take into account the fact that his moneylender is a public official or one ‘in the high up of political circles’ and hence the ill-treatment was inflicted on him at the behest of state law enforcement agencies. The thrust of his argument is that the assault on the Applicant’s wife and daughter were occasioned by the moneylender through the hands of his assistants. The Board had taken note of these facts fully and considered his arguments. At paragraph 18, the Board noted that the moneylender was affiliated to ADMK political party, was an ex-member of the Legislative Assembly and an ex-Minister. The assaults took place in 2015 before the moneylender stepped down from the Legislative Assembly. The moneylender may arguably still be a state official at the time of the assault.

22. Be that as it may, to qualify for protection under Torture Risk ground, the claimant must show that pain or suffering is intentionally inflicted on him for such purposes as stated in section 37U(1)  and by or at the instigation of or with the consent or acquiescence of, a public official or other person acting in an official capacity. As stated in The United Nations Convention Against Torture: A handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1988, the purposes must show the existence of some connection with the State’s interests or policies. Having considered this guideline, the Board held at paragraph 74:

‘The acts or conduct of [the moneylender] were that of a person consumed by greed, refusing to release the title deeds of [the Applicant’s] house after full repayment of the loan. He was bent on taking legal possession, after scaring [the Applicant’s] family into vacating the house. It was not for any of the listed purposes.’

The acts and conduct relied on by the Applicant could have no connection with the state interest or policy of India. They fall clearly outside the scope of protection under the Torture Risk ground. The Board could not have erred in its finding at paragraph 74. The Board has not failed to take into account the facts and arguments advanced by the Applicant and has not erred in its conclusion. For this reason alone, the Applicant’s claim under Torture Risk ground must fail. There is no substance under this ground.

Grounds (1), (3)  and (4)

23. The Applicant was unable to give particulars of the unreasonableness or unfairness in the Decision and the unfair attitude of the Director or the Board complained of and the arguments which he alleged the Board of having failed to take into account. As for his complaint of lack of sufficient time to arrange the relevant evidence, presumably he meant he only had a few days between service of the hearing bundle on him and the hearing. However, the single most important document in the hearing bundle is the Notice which had been issued to him on 15 February 2018. He had between the date of issue of the Notice and the hearing before the Board about ten months to prepare for the appeal. The other documents in the hearing bundle are the NCF prepared by him with the assistance of an interpreter and the Duty Lawyer and the record of his answers given by him during the screening interview with the assistance of an interpreter and with legal advice. He knew the contents of these documents. He had the benefit of the submission made by the Duty Lawyer on his behalf at the screening interview. All the benefits which legal assistance could have afforded him were contained in the hearing bundle before the Board. He also admitted he had the opportunity to answer the Board’s question and address the Board. In the absence of particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to India. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India and that in any event state protection and internal relocation are viable options to prevent or avoid the risk.

24. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; quoted relevant precedents in support of its decision; and observed a very high standard of fairness. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claims are founded on his fear of being harmed by a moneylender trying to force him out of his house which is not connected with any state interest or policy of India. The Board had correctly applied the law but found that even on the basis of his case, the Applicant is not entitled to non-refoulement protection. This conclusion was further supported by availability of stated protection and internal relocation. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. There was no error of law in the Decision or procedural unfairness in the proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. The Decision was utterly without fault. The Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

25.  For the above reasons, leave to apply for judicial review was refused.”

The Appeal

10.  On 15 February 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“I can’t go back to my country at this moment because my life is not save there. Please help me to stay in Hong Kong so there I can save my life.” (sic)

11.  Pursuant to the directions made by the Registrar of Civil Appeals on 15 February 2022, the applicant lodged his written submissions on 28 February 2022.  In those submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the proposition that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

Discussion

12.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

14.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics.

15.  Nowhere in his Notice of Appeal or written submissions did the applicant identify any error committed by the Deputy Judge.  The matters raised by the applicant are all directed that the Board and are general, bare and vague allegations unsupported by specific particulars or evidence.  Clearly, they do not constitute viable grounds of appeal and this appeal must fail on this basis alone.

16.  In any event, his arguments are devoid of merit.  General and bare assertions of his fear if refouled to his home country do not constitute valid grounds of appeal.  As repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

17.  We agree with the Deputy Judge that there was no error of law, irrationality or procedural unfairness in the Board’s Decision.  There is plainly no basis to disturb the Leave Decision.

18.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.