RE KHAN KHURSHID

CACV 158/2021

[2021] HKCA 1284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 158 OF 2021

(ON APPEAL FROM HCAL NO 2130 OF 2018)

____________________

____________________

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge P Li given on 30 March 2021 refusing leave to the applicant to apply for judicial review.[1] The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑Refoulement Claims Petition Office (“Board”) dated 7 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 28 April 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 16 September 2015 as a visitor and was permitted to remain until 30 September 2015.  He overstayed and surrendered to the authorities on 5 October 2015.  He lodged a non‑refoulement claim on 25 April 2016.

3.  The applicant’s claim was based on threats from his creditors.  The details of the applicant’s claim have been summarised by the judge at [2] to [10] of the CALL‑1 Form.

4.  By a Notice of Decision dated 28 April 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk,^[2] the BOR 3 risk,^[3] the persecution risk^[4] and the torture risk.^[5]

5.  The applicant appealed to the Board.  After a hearing on 26 July 2017, the Board dismissed the appeal on 7 August 2018 (“Board’s Decision”). The Board’s Decision likewise covered all four grounds for non‑refoulement protection.

6.  At [42]–[48] of the Board’s Decision, the Board found that the applicant’s case was not credible.  At [49]–[51], the Board found that even if the applicant’s case was accepted, the creditors did not intend serious harm to him and thus there would be no real risk to the applicant upon his return to his country.

The judge’s decision

7.  The applicant filed a Form 86 on 5 October 2018 seeking leave to apply for judicial review of the Board’s Decision but the form did not specify any ground for seeking judicial review.  In his affirmation in support of the leave application filed on the same date, the applicant deposed that:

“ The decision taken by the Director … and Adjudicator …, for my application for seeking non‑refoulement protection in Hong Kong is not correct. They have failed to consider the ground realities in India before reaching at their decisions.”

8.  After summarizing the facts and background of the case and considering the decisions of the Director and the Board, the judge gave the following reasons for refusing leave to apply for judicial review at [18] to [25] of his decision:

“ 18. The applicant applied for leave to apply for judicial review on 5/10/2018. In his supporting affirmation, he pointed out that the adjudicator failed to consider the realities in his home country.

19. The applicant filed a letter dated 21/10/2020. He stressed that the adjudicator had not considered his case afresh. He relied on unofficial sources of news which was simply hearsay. The adjudicator had not analysed the supporting documents.

20. During the hearing on 19/1/2021, the applicant indicated that he had no complaint against the TCAB. He needed more time to submit supporting documents.

21. The applicant came to Hong Kong in 2015. He was fully aware of the importance of supporting documents. He made little effort to do so. I agree with the adjudicator that the applicant already has ample time. The decision to refuse adjournment was correct. I do not find the applicant’s reason for adjournment genuine. I refuse him time for that purpose too.

22. In any event, I agree with the adjudicator that the evidence of the applicant in support of his claim is not credible. His conduct of travelling for business to China and Hong Kong in March to August 2015, his return to India and his final arrival at Hong Kong in September 2015 was inconsistent with his claim of fear. Given that the adjudicator rejected completely the factual basis of his claim, there was no need to consider State protection and relocation.

23. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

24. In my judgment, there is no error of law or procedure. The decisions are reasonable.

CONCLUSION

25. The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.”

This appeal

9.  In the Notice of Appeal filed on 12 April 2021, the applicant stated 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.”

10.  In his skeleton submissions for the appeal lodged on 9 July 2021, the applicant cited a number of cases on the high standards of fairness, such as ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 without however explaining the relevance of those cases.

11.  At the hearing of the appeal on 30 August 2021, the applicant confirmed that what he wished to say was already in the documents.

12.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  Further, on an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify the errors made by the judge below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.

13.  The only ground of appeal advanced by the applicant is that it is unsafe for him to return to his country.  He has not identified any error on the part of the judge and has failed to advance any viable ground of appeal. 

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