RE MOHAMMED SALIK

CACV 281/2018

[2018] HKCA 816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 281 OF 2018

(ON APPEAL FROM HCAL 628/2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock of 25 June 2018 [2018] HKCFI 1308 refusing to grant leave to the applicant to apply for judicial review.

Background

2.  The applicant is an Indian national.  He entered Hong Kong on 25 May 2014 with permission to remain as a visitor for 14 days. He did not depart despite the expiry of his permission to remain, and overstayed illegally.  He was arrested by the police on 15 June 2014.  He lodged his claim for non-refoulement protection on the following day.  

3.  The applicant’s claim was based on his fear that, if he returned to India, he would be harmed or even killed by his paternal uncle due to a land dispute.  The applicant claimed that his uncle was an area leader of the All India Trinamool Congress (“TMC”).  The background facts were summarized by the judge at [3] to [6] of the CALL-1 form in [2018] HKCFI 1308.

4.  The Director of Immigration assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against him.  BOR 3 risk[1], persecution risk[2], and torture risk[3] were covered in the Director’s notice of decision dated 29 April 2016. BOR 2 risk[4] was covered in his notice of further decision dated 17 July 2017.

5.  The applicant appealed to the Board against the Director’s decisions.  After hearing the applicant on 8 August 2017, the Board was not satisfied that the applicant was entitled to non-refoulement protection in Hong Kong.  The Board dismissed the appeal on 13 September 2017.

The judge’s decision

6.  On 15 September 2017, the applicant applied to the court for leave to apply for judicial review.  The applicant stated in the Form 86 that it was the decision of the Board in respect of which relief was sought.  However, it appears in the applicant’s supporting affirmation dated 15 September 2017 that, in the intended application for judicial review, he also sought relief against the decisions of the Director.

7.  While no ground for relief was contained in the Form 86, the applicant advanced the following grounds in his supporting affirmation:

(1)  Both the Director and the Board erred in failing to consider the concept of extended stated acquiescence;

(2)  Both the Director and the Board erred in law in failing to take into account the applicant’s psychological trauma;

(3)  The Board erred in failing to treat the hearing before it as a re-hearing;

(4)  The Board erred in law in failing to make an independent assessment of the applicant’s risk and a determination regarding state acquiescence;

(5)  The Director erred in failing to conduct a sufficient enquiry into the relevant country of origin conditions; and

(6)  The Director erred in taking into account irrelevant consideration.

8.  Upon the request of the applicant, an oral hearing was held on 31 January 2018.  In the CALL-1 Form [2018] HKCFI 1308, the judge set out her reasons for refusing leave at [12] to [18]:

“ 12. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

13. The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise, submits both decision-makers failed to consider the concept of extended State acquiescence. They failed to consider the applicant’s psychological and mental trauma. The adjudicator of the TCAB is accused of failing to treat the appeal as a rehearing or a de novo hearing and failing to obtain relevant Country of Origin (“COI”) information for himself. The Director is accused of failing to conduct sufficient enquiry into relevant COI conditions and taking into account relevant considerations as well as failing to give reasons for rejecting his BOR 3 risk claim.

14. Leaving aside my view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here. Leaving aside that view, even if this application applied to both decision-makers, there are no merits in the grounds against either.

15. There are no particulars put forward in these grounds against the Director. A reading of his decision shows he considered relevant, objective, ample and up-to-date COI information. He also gives full reasons for his findings and conclusions as well as a rejection of the four applicable grounds.

16. There are no particulars put forward in these grounds against the adjudicator of the TCAB. He clearly considered the appeal afresh and de novo. Both decision-makers found the applicant’s case did not amount to torture and/or CIDTP and/or persecution. The adjudicator went further and did not find the applicant credible or believable. The applicant did not rely on the extended concept of State acquiescence therefore; the decision-makers did not need to consider this concept in depth. This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.

17. In paragraph 4 of the applicant’s affirmation the adjudicator is accused of failing to obtain relevant COI information. There is a quote taken from the decision and the quote alleged that the adjudicator merely made reference to the applicant’s papers and evidence in assessing his claim. However, this quote cannot be found in this adjudicator’s decision and when the applicant was questioned about this during the oral hearing he could not understand the point that the quote did not come from this adjudicator’s decision. He could not answer the question. It would appear that the affirmation is referring to either another decision or it is deliberately misleading.

18. After considering the applicant’s grounds, I do not find any that shows there was an error of law by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.”

The appeal

9.  The applicant filed a notice of appeal on 3 July 2018.  In the notice of appeal, the applicant advanced the following grounds of appeal:

“1. I respectfully disagree that the application for leave to apply for judicial review should be sought against the decision of the TCAB only. The Judge mentioned that ‘the applicant has already utilized the channel of appealing the Director’s decision to the TCAB.’ However, given that the Adjudicator has confirmed the decision of the Director of Immigration, clearly it would mean that the reasons for rejection will be similar, if not the same.

2. Furthermore, I could not be able to seek application to apply for judicial review against the Director of Immigration’s decision before first having to go through the Appeal at the Torture Claims Appeal Board. If I were to pursue the matter by going around the Torture Claims Appeal Board, it would have been procedurally wrong.

3. I reserve the right to respond to the comment that ‘it would appear that the affirmation is referring to either another decision or it is deliberately misleading’ later on in my submissions as I believe this is quite a heavy accusation that requires clarification. The fact that the Judge never asked me directly at the oral hearing is also another indication that the Judge did not consider my case thoroughly. If she were to have any doubts or concerns, the oral hearing would have been the best opportunity for me to answer the questions accordingly.

4. I therefore seek a reconsideration of my case with an oral hearing arranged.”

10.  By a letter dated 9 July 2018, the applicant gave consent that this appeal be heard before a two-judge court.

11.  The applicant lodged his written submissions on 3 October 2018.  Basically, the applicant reiterated the grounds of appeal in the written submissions.

12.  We heard the appeal on 7 November 2018.

Discussion

13.  There is no merit in paras.1 and 2 of the notice of appeal.  In Re Moshsin Ali[2018] HKCA 549, this Court (Lam V-P and McWalters JA) explained the legal reasons for holding that the decision of the Director was not a decision that is susceptible to judicial review after an appeal to the Board has been pursued by a claimant and the Board has made a determination.  This ground is totally devoid of merits.

14.  The judge’s comment at [17] of the CALL-1 Form related to para 4 of the applicant’s affirmation.  At that para 4, the applicant made a statement that “the Appeal Board in paras 21- 42 of the Appeal Board Decision merely makes reference to ‘all the papers and the evidence given by me’ in assessing of my claim.” The judge was correct in that there was no such expression at paras 21- 42 in the Board’s decision.

15.  On the other hand, the Board did make reference to the COI referred to by the Immigration Officer at paras 58 and 59 of the Board’s Decision, which is probably the intended reference in the context of para 4 of the affirmation.

16.  Be that as it may, the misunderstanding arising from the incorrect reference in para 4 could not give rise to a valid ground of appeal.

17.  As it has been held in Re Esmerez maria Nieva Gelito [2018] HKCA 611, the extended concept of acquiescence has a higher threshold that reasonable state protection. On the facts of the present case, based on the materials available, the Board found that state protection was available. There is no room for running a case based on the extended concept of acquiescence.   

18.  In our judgment, the applicant failed to advance any effective arguments against the analysis of the judge.  Having read the judge’s decision and the Board’s decision, and the materials presented by the applicant, we agree with the judge that leave should not be given to the applicant to apply for judicial review.

19.  We dismiss the appeal accordingly.