ALAM MAHTAB v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 487/2018

[2019] HKCA 231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 487 OF 2018

(ON APPEAL FROM HCAL NO 366 OF 2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Campbell-Moffat J (“the Judge”) on 26 September 2018, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 7 November 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 12 February 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2014.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of India.  He came to Hong Kong as a visitor on 31 December 2013 and was allowed to stay until 14 January 2014. He did not depart and overstayed since 15 January 2014.  He was arrested by the police on 7 February 2014.  On 9 February 2014, he lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by the supporters of Trinamool Congress party (“TMC”) because he had some long term private disputes with TMC for being a supporter of the Communist Party of India (Marxist) (“CPIM”).

5.  By a Notice of Decision dated 30 November 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By a Notice of Further Decision dated 12 June 2017, the Director also rejected the applicant’s claim BOR 2 risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”).  After the hearing on 20 September 2017, the Board dismissed the appeal on 22 February 2018.  At the hearing, the applicant admitted that he had not been harmed after the incident of suspected attack by TMC people in November 2012 in which the applicant alleged that a suspected TMC member tried to shoot him with a gun, but fortunately he managed to duck down and avoided being hurt.  There were other incidents of attacks, which were caused by private disputes of local rival political parties and the applicant sustained injuries during his fights with the TMC people.  The Board found that these experiences did not meet a minimum level of severity.  Further, with reference of the objective country of origin information (“COI”), there was no suggestion of any untoward state involvement and the applicant could reasonably re-locate in his home county to avoid any future risk of harm/attack.  With the aforesaid reasons, the Board found that the applicant had failed to establish his non-refoulement claim under all applicable grounds.

THE JUDGE’S DECISION

7.  The intended application for judicial review was in respect of the Board’s decision.  The applicant failed to provide any ground for his intended challenge in Form 86 and in his supporting affirmation both filed on 7 March 2018.

8.  On 26 September 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [10] – [12] for her refusal to grant leave :

“ Grounds of review

10.  There were no grounds of review.  The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

THE APPEAL

9.  The applicant filed the Notice of Appeal filed on 28 September 2018 in which he set out the following ground of appeal :

“ The plaintiff (applicant) will face hardship if he is to return back to his home country and that the Torture Claims Appeal 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.”

DISCUSSION

10.  The applicant had failed to provide any ground of review at the lower court hearing before the Judge. This Court will not generally entertain new arguments that are fact-and-evidence sensitive which have not been canvassed at the lower court and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v. Yusuf Yu [2018] HKCA 451.

11.  Further, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court would only examine the decision of the judge in light of the grounds advanced by the applicant, see: Re Shrestha Santosh Kumar [2018] HKCA 583.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for leave to apply for judicial review.  We see no merit in the ground of appeal put forward by the applicant in this appeal as it does not identify any error in the Judge’s decision.  The appeal plainly has no prospect of success.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.