RE AHAMED AZAD

CACV 369/2020

[2021] HKCA 353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 369 OF 2020

(ON APPEAL FROM HCAL 1903/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 4 August 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 7 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 13 February 2018 rejecting the applicant’s non-refoulement claim.

2.  On 13 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  He last entered Hong Kong on 30 April 2013 and was permitted to remain as a visitor until 4 May 2013.  He did not depart Hong Kong and was arrested by police on 7 June 2013 for overstaying.  The applicant lodged a torture claim on 9 June 2013, which the Director rejected by notice of decision dated 22 January 2014.  The applicant did not appeal against the rejection of his torture claim. 

4.  He lodged his current non-refoulement claim on 28 January 2014.

5.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his girlfriend’s family, as they blamed him for her death.  The factual background was summarized by at paragraphs 8 to 12 of the Board’s decision.

6.  By notice of decision dated 13 February 2018, the Director assessed the applicant’s non-refoulement claim on all applicable grounds (other than torture risk[1]), i.e. BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4], and determined it against them.

7.  The applicant appealed to the Board against the Director’s decision dated 26 February 2018.  An oral hearing was held on 11 June 2018, during which the applicant answered questions from the Board.  The Board could not attach to any credence to the applicant’s claims due to the vagueness, incoherence and serious discrepancies in his evidence[5].  Thus the Board found that the applicant failed to establish that there is a real risk of harm, and dismissed the applicant’s appeal on 7 August 2018 on all the applicable grounds except torture risk.

Decision of the court below

8.  On 11 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The applicant did not state any grounds for relief in either his Form 86 or his affirmation in support.

9.  On 4 August 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [16] of the Form CALL-1 ([2020] HKCFI 1849, HCAL 1903/2018) as follows:

“ 10. In its Decision, the Board found that the story of the applicant was a fabrication and his claims could not be given any credence whatsoever. See §§24-35 of the Board’s Decision. Below is a summary of the findings.

a. His account of evidence was vague and inconsistent.

b. His evidence before the immigration officer and the Board was inconsistent.

c. He was unable to explain such discrepancies and inconsistences, given the opportunity to do so by the Adjudicator.

Application for leave to apply for judicial review

11. The applicant filed Form 86 on 11 September 2018 for leave to apply for judicial review of the Board’s Decision.

12. In his affirmation in support of his application, he did not set out any reasons for his application.

DISCUSSION

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 10 above.

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

“13.… …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.”

15. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to this Court

10.  On 13 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which his stated ground of appeal was that his life would be in danger if he were to return to his country.

11.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

12.  This Court directed on 17 December 2020 the applicant to lodge his written submissions on appeal by 14 January 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

13.  The applicant failed to lodge any submissions as directed.  The hearing date is vacated and this appeal is processed on paper without oral hearing.

Legal principles

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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 purpose 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 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 (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;

(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 we 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; and

(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.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its rejection of the applicant’s evidence and for that reason the applicant failed to establish that there is a real risk of harm.  Assessment of credibility is within the province of the Board and the court will not interfere with such assessment unless it is reversible on public law grounds. 

16.  As mentioned, no ground for seeking judicial review was advanced before the Judge and the ground set out in the Notice of Appeal was a mere assertion of his alleged predicament.

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  The Judge is plainly right to refuse leave in these circumstances.  There is no reasonably arguable ground to challenge the decision of the Judge.

18.  For these reasons, we do not see any prospect of success in this appeal.  Accordingly, this appeal is dismissed.

19.  After the preparation of this judgment, the Applicant filed a Request for Dismissal of the appeal on 8 March 2021.  Notwithstanding that, in light of our analysis above, we dismiss the appeal on the merit.