RE ISMAIL SHIAK DAWOOD

CACV 27 /2019

[2019] HKCA 520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 27 OF 2019

(ON APPEAL FROM HCAL NO 648 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1)   The appeal

1.   This is an appeal by the Applicant against the decision of Deputy High Court Judge Josiah Lam (‘Judge’) given on 9 January 2019 in which he refused to grant leave to the Applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

2)   Factual background

2.1nbsp;  The Applicant is a national of India.  He left India on 2 October 2012.  He arrived in Hong Kong on 4 October 2012 and overstayed since 20 October 2012. He subsequently raised a non-refoulement claim.

2.2   The basis of the Applicants’ claim is that he would be harmed or killed by his creditor Kuppan because he failed to repay the latter.

3)  The Director’s Decision and the Director’s Further Decision

3.1   The Director decided against the Applicants’ torture claim on 25 July 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).  

3.2   By a further decision of the Director dated 28 July 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the Applicant and decided against the Applicant (‘the Director’s Further Decision’). 

4)  The Board’s Decision

4.1   The Applicant appealed against the Director’s Decision to the Board on 4 August 2016.  After a hearing held on 15 February 2018, the Board dismissed the Applicant’s appeal on 29 March 2018 (‘the Board’s Decision’).

4.2   The Adjudicator found there were inconsistent, exaggerating and implausible features in the Applicant’s allegations.  The centrepiece of the Applicant’s claim was that he borrowed money from Kuppan to run his food business.  The Applicant explained how the money was spent.  The Adjudicator was not satisfied with his explanation.  The Adjudicator found it hard to believe that Kuppan would prevent the Applicant from doing business when he wanted the Applicant to have money to pay him.  The Adjudicator did not find the Applicant’s evidence credible.  The Applicant failed to prove any risk that warranted non-refoulement protection.

4.3   The Adjudicator found that even if the Applicant’s allegations were true, his complained situation still did not involve any torture or cruel, inhuman or degrading treatment or punishment or arbitrary deprivation of life or persecution for any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion).  There was no torture risk, persecution risk, BOR2 risk or BOR3 risk.

4.4   The Adjudicator did not accept Kuppan would be able to seek the Applicant out in the whole of India.  The Adjudicator studied relevant country-of-origin information (“COI”) and considered that internal relocation was viable in the Applicant’s case.

5)  Decision of the Judge

5.   The Judge assessed the Applicants’ application for leave for judicial review.  He stated the legal position that 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. He stated the following:-

“31. The Adjudicator’s report was clear and comprehensive. The Adjudicator studied the Applicant’s case in detail, including the relevant COI. He understood the Applicant’s claim well and the relevant situation in India.

32. The Adjudicator need not state his mental process of judging and weighing the COI. There was no evidence that the Adjudicator cherry-picked information for his decision.

33. The Adjudicator found the Applicant’s claim incredible, so there was no psychological harm to be considered.  Since the Applicant failed to establish any risk that warranted non-refoulement protection, the Adjudicator also need not discuss reasonable state protection (including extended state acquiescence).”

6)  Grounds of appeal

6.1   The Applicant in the Notice of Appeal filed on 17 January 2019 essentially stated that he still has problems in his home country.  The immigration department was unfair.  He needed justice.  His home country was unsafe.  He needed time to settle matters in his life.

6.2   The Applicant’s skeleton submission dated 20 March 2019 stated essentially that he had no legal representation, he had no money, and his legal aid application was pending.  The skeleton submission was attached with a draft document that appears to be a court document in relation to an application by a Mr Appas for an injunction to restrain the Applicant from trespassing his house and disturbing his family members.  Strange enough, the contents therein seem to suggest that the Applicant is involved in a private dispute where he was threatening Mr Appas’ “life and limb”. Mr Appas also alleged that the police was influenced by the Applicant.  In any event, the draft document cannot in any way assist the Applicant’s appeal. 

7)  Our view

7.1   We are of the view that the Applicants’ appeal is without merits.  The Applicants provided no reasonably arguable grounds for judicial review.  The Applicant provided no specifics or elaboration on what his grounds of appeal were.

7.2   An appeal against refusal of leave for judicial review is not an occasion for the Applicants to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

7.3   Accordingly, the appeal is dismissed.