RE MOHAMMAD KAMRAN

CACV 387/2022

[2023] HKCA 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 387 OF 2022

(ON APPEAL FROM HCAL 2177/2018)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 14 September 2022 refusing to extend time for the applicant to apply for leave for judicial review and dismissing his leave application. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 24 March 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 November 2014 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India. He entered Hong Kong on 20 March 2006 as a visitor, but he overstayed and was arrested by the police on 6 January 2008.  Thereafter, he lodged a torture claim on 12 January 2008, which was later treated as a non-refoulement claim upon implementation of the unified screening mechanism.

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor Karim.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision dated 13 November 2014 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

5.  By a Notice of Further Decision dated 9 May 2017, the Director also rejected the applicant’s claim based on the BOR 2 risk^[5].

6.  The applicant appealed to the Board against the Director’s Decision only (and did not appeal against the Director’s Further Decision dated 9 May 2017).  After an oral hearing on 18 September 2015, the Board dismissed the appeal by the Board’s Decision, which covered all grounds for non-refoulement protection except the BOR 2 risk.  The Board found that the applicant failed to establish that he was subject to any ill-treatment in the past, that he borrowed money from Karim or that Karim had made threats against him.  

The Judge’s decision

7.  The applicant filed a Form 86 out of time on 10 October 2018, seeking to judicially review the Board’s Decision, without setting out any grounds.  In the applicant’s supporting affirmation, he claimed that the Immigration Department disregarded his “dangerous situation”.   

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant’s application nor grant him leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [21] of the CALL-1 Form:

“14.     As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The delay is serious. Nevertheless, I shall, first consider the merits of the applicant’s case.

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13(1) …Assessment of evidence and COI materials and 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.’

18.  The Board rejected his evidence on the facts of the case. The applicant has not raised any valid ground to challenge the Board’s Decision.

19.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  There is no evidence which shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

21.  I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 23 September 2022, the applicant did not set out any grounds, and merely stated that he was dissatisfied with the Judge’s decision because “its away from facts and reality”.

10.  The applicant lodged written submissions on 27 September 2022, wherein he claimed that there were many “things” related to his case which were ignored by the decision-makers below, and that the decisions were not “transparent”.

11.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

12.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

13.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

15.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

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