AHMED MEHRAJ v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITON OFFICE

CACV 229/2021

[2021] HKCA 1332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 229 OF 2021

(ON APPEAL FROM HCAL NO 2979 OF 2018)

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JUDGMENT

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

INTRODUCTION

1.  On 27 April 2021, DHCJ P. Li (“the Judge”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 21 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 January 2018 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 7 May 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

3.  Pursuant to the Court’s directions of 8 July 2021, the applicant was required to lodge his written submissions on or before 16 August 2021 but he failed to do so.  The Court further directed that in the event the applicant failed to lodge his written submissions, he would be deemed to waive his right to have an oral hearing of this appeal and elect to have this appeal disposed of on paper.  As it is appropriate to do so, we now proceed to consider this appeal on paper only.

BACKGROUND

4.  The applicant is an Indian national.  He first came to Hong Kong on 23 September 2011, and made several trips to Hong Kong between 2011 to 2013.  He last arrived in Hong Kong on 24 July 2013 as a visitor.  He overstayed and surrendered to the Immigration Department on 4 January 2016.  On 28 October 2016, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by a money lender, Bobby Hakim (“BH”), and his men as he failed to reply a loan owed to BH.  The factual background of this case was succinctly summarized by the Judge in [3] – [12] of the Form CALL-1 ([2021] HKCFI 1114).

5.  By a Notice of Decision dated 31 January 2018, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her.

6.  The applicant appealed the Director’s decision to the Board and he attended an oral hearing on 22 August 2018.  By its decision dated 21 December 2018, the Board rejected the applicant’s claim.  In its decision, the Board found that the applicant’s evidence was extremely evasive and contradictory, and the Board was not satisfied that he was a reliable witness.[5] The applicant’s claim that BH and his men still looked for him was based on hearsay evidence from his brother.  Further, the applicant last came to Hong Kong in July 2013 and he failed to explain why he only raised his non-refoulement claim in October 2016.  Such delay further undermined his credibility.[6] The Board held that there was no real chance that the applicant would be harmed upon his return to India and in any event, reasonable state protection was available and internal relocation as a viable option.[7]  For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

DECISION OF THE COURT BELOW

7.  On 27 December 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his Form 86 and supporting affirmation, he failed to advance any grounds for his intended challenge.

8.  The Judge disposed of the leave application on paper.  By his decision dated 27 April 2021, the Judge refused to grant the applicant leave to apply for judicial review.  The reasons for the refusal were set out at [19] – [21] of the Form CALL-1 as follows:

“19. 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.

20. The applicant had not made specific complaint of any error in the decision of the TCAB. In my view, there were material inconsistencies in his evidence. The adjudicator was right to reject the factual basis of his claim.

21. In my judgment, there is no error of law or procedure.  The decision is reasonable.”

APPEAL TO THIS COURT

9.  On 7 May 2021, the applicant filed his Notice of Appeal to this Court against the Judge’s decision.  He did not advance any ground of appeal save for saying that he did not want to go back to India as it had a pandemic situation and his enemies were still looking for him.

10.  As it was noted that the Notice of Appeal did not contain any proposed grounds of appeal, pursuant to the direction of the Court dated 24 June 2021, the applicant filed his Supplementary Notice of Appeal on 7 July 2021 in which the applicant advanced the following grounds of appeal:

(1)   The Judge had failed to consider all applicable grounds and risk of violation of Article 2 (right to life) and Article 22 (equality before and equal protection of law) of the Hong Kong Bill of Rights (“HKBOR”). (Ground 1)

(2)   The Judge was wrong to accept the Board’s finding that “the only fact established is that the applicant is an Indian male, he faces no risk of any harm at all” in rejecting the claim on persecution risk. (Ground 2)

(3)   The Judge’s finding that the Board’s decision was without fault was irrational. (Ground 3)

(4)   He was deprived of the right to have legal representation.  He had informed the Judge of his appeal against the refusal of his application for legal aid.  He considered that his legal aid application should be approved as his case had merit and he required proper legal support for his intended judicial review application. (Ground 4)

LEGAL PRINCIPLES

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(1)   The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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.  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.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant 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.

(3)   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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

DISCUSSION

12.  Ground 1 is misconceived.  The role of the court in judicial review is to review the Board’s decision against any valid public law grounds raised by the claimant rather than to provide a further avenue of appeal against the Board’s decision or to assume the Board’s role in assessing the applicant’s claim on all applicable grounds.  In any event, having considered the Board’s decision, we are satisfied that the Board duly considered the applicant’s claim on all applicable grounds, including his claim based on BOR 2 risk under Article 2 of HKBOR (see [41] to [59] of the Board’s decision).  Article 22 of HKBOR relied upon by the applicant is not, on the facts of this case, engaged, and has no relevance to the applicant’s intended application for judicial review.

13.  Ground 2 is devoid of merit.  It was open to the Board to reach the finding at [51] to [54] of the its decision that the applicant had failed to demonstrate that he faced any problem because of his race, religion, nationality or membership of a particular social group or political opinion so as to warrant non-refoulement protection on the ground of persecution risk.  Such findings were supported by evidence and justified.

14.  Ground 3 is a mere general complaint without basis.

15.  In so far as Ground 4 is concerned, upon our checking of the court file, there is no record of any memorandum of notification that the Applicant made any legal aid application in relation to the proceedings below filed by the Director of Legal Aid.  In any event, the fact that the applicant did not have legal aid in the proceedings below is not a valid ground of appeal.

16.  Having considered the materials before us, we are satisfied that the Judge’s observations and conclusions are justified.  We are also satisfied that the Judge reviewed the Board’s decision with vigorous examination and anxious scrutiny, and was right to refuse his leave application.

ORDER

17.  For the above reasons, this appeal is dismissed.