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CACV 276/2021
[2021] HKCA 1551
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 276 OF 2021
(ON APPEAL FROM HCAL NO 2658 OF 2018)
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| BETWEEN |
TRANNUM SHAZIA
ASIF MEHMOOD |
1st Applicant
2nd Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITON OFFICE |
Putative Respondent
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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Before: Hon Chow JA and ST Poon J in Court
Date of Written Submissions: 20 September 2021 (received on 23 September 2021)
Date of Hearing: 25 October 2021
Date of Judgment: 1 November 2021
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JUDGMENT
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Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 10 May 2021 refusing to grant leave to the Applicants to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 4 October 2018. The Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 11 April 2017 rejecting the Applicants’ non-refoulement claim.
BACKGROUND
2. The 1st and 2nd Applicants, mother and son, are Indian nationals. They came to Hong Kong on 10 June 2011 as visitors. They overstayed in Hong Kong, and later surrendered to the Immigration Department. On 27 July 2011, they made a torture claim[1], which they withdrew on 1 November 2012. They later made a non-refoulment claim by written representation dated 14 May 2014.
3. In brief, the Applicants’ claim is that if refouled to India, they would be at risk of being harmed or killed by members of the Sunni and Shia Muslim sects or anti-Ahmadis Muslims due to their family’s Ahmadi Muslim faith. Details of the Applicants’ claim have been summarised by the Judge at §5 of the CALL-1 Form.
4. By a Notice of Decision dated 11 April 2017, the Director rejected the Applicants’ non-refoulement claim on the following grounds: BOR 2 risk,[2] BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).
5. The Applicants appealed the Director’s Decision to the Board. On 22 June 2018, the Board heard the appeal.
6. On 4 October 2018, the Board dismissed the Applicants’ appeal and affirmed the Director’s Decision (“the Board’s Decision”). The Board found that there was no State involvement in relation to the claimed risk of harm against the Applicants, and thus state protection was available (see Board’s Decision at §130); internal relocation was viable (§§138-143); there was no personal and real risk of the Applicants being subjected to BOR 2 risk (§148); no evidence that the Applicants were targets of Sunni and Shia sects (§154); and the dispute was private in nature which did not come within the definition of persecution (§155).
THE JUDGE’S DECISION
7. On 23 November 2018, the Applicants filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.
8. As observed by the Judge, since the 2nd Applicant was an adult, Fabio Arlyn Timogan and Others v Evan Ruth and Another CACV 32/2020 [2020] HKCA 971 did not apply (see Form CALL-1 at §12). The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny (§13). The Judge found no evidence showing that the State was involved in actions against the Applicants. State protection was available and internal relocation was an option to them. The Judge did not find any error of law or procedural unfairness in the Board’s Decision, and no evidence showing any prospect of success in the Applicants’ intended application for judicial review (§§17-19).
9. Accordingly, on 10 May 2021, the Judge refused to grant leave to the Applicants to apply for judicial review.
THIS APPEAL
10. In their Notice of Appeal dated 24 May 2021, the Applicants did not provide any proper grounds of appeal. Subsequently, the Applicants advanced six grounds of appeal in their Supplemental Notice of Appeal which closely mirrored their supporting affirmations of 17 June 2021. The first five grounds dispute the assessment of evidence by the Board. For the sixth ground, the Applicants contend that even though the 2nd Applicant is now an adult, he should still be regarded as being vulnerable.
11. At the hearing of this appeal on 25 October 2021, the 1st Applicant clarified that she was originally a Pakistani national but subsequently acquired Indian nationality by residence, and the 2nd Applicant was of Indian nationality. The Applicants also repeated their claimed fear of being returned to India because of the religious faith of their family.
DISCUSSION
12. As held by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14, the assessment of evidence, risk of harm, state protection and viability of internal relocation are matters for the Board. The court will not intervene by way of judicial review unless it is shown that there are errors of law or procedural unfairness or irrationality in the decision of the Board.
13. An appeal against a refusal of leave to apply for judicial review by a judge in the Court of First Instance is not the occasion for regurgitating arguments already advanced and rejected by the judge. In the determination for an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong (see Re Iqbal Parvaiz [2020] HKCA 76 at §7.1).
14. If no viable ground of appeal is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).
15. In relation to the present appeal, the Applicants’ first five grounds are not viable grounds of challenge to the Board’s Decision as the court in an application for judicial review will not reassess the Board’s findings of fact unless the Applicant can show illegality, procedural unfairness, or irrationality in the Board’s Decision.
16. The Applicants’ sixth ground has been considered by the Judge (see Form CALL-1 at §12). The Applicants are both adults, so Fabio Arlyn Timogan and Others v Evan Ruth and Another CACV 32/2020 [2020] HKCA 971 is not applicable. Fabio is relevant only where a non-refoulement claim involves a minor.
17. The Applicants have failed to raise any viable grounds of appeal against the Judge’s decision. The present appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal |
(ST Poon)
Judge of the Court of
First Instance |
The Applicants, unrepresented, appeared in person
[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 his 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 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.
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