Re Mohammad Wakil

CACV 480/2019

[2020] HKCA 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 480 OF 2019

(ON APPEAL FROM HCAL NO. 965 of 2017)

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JUDGMENT

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Hon Alex Lee J (giving the Judgment of the Court):

1.On 3 June 2020, this Court (Kwan VP and Alex Lee J) handed down a judgment[1] (“the Judgement”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 2 October 2019[2] refusing him leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim.  

2.The facts and issues in the appeal as well as this court’s reasons for dismissing it are set out in the Judgment.  We shall not repeat them here.

3.By a Notice of Motion filed on 30 July 2020, the applicant applies for leave to appeal against the Judgement to the Court of Final Appeal.  The Registrar of Civil Appeals directed that the applicant shall lodge his written submissions in support of the application on or before 13 August 2020.  However, the applicant has failed to lodge any written submission until 25 August 2020.  Although the applicant has filed his written submission out of time, we will still consider it out of abundance of caution.

4.Having considered the applicant’s Notice of Motion, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of his Notice of Motion and written submission.  

5.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.The Notice of Motion states the following grounds:

(1)  This court is wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director and the Adjudicator.

(2)  This court is wrong as a matter of law for not having applied the principle of procedural unfairness to the decisions of the Director whereby the Director and the Adjudicator were required to give reasons justifying their decision.

(3)  The Applicant will face hardship if he returns to his country.

(4)  The Board had significantly relied on the source of news which was not officially recognized or was simply hearsay.

(5)  The judge did not apply the law properly.

7.In his written submission, the applicant reiterates the general principles about the “high standards of fairness” required in determination of a torture claim on the part of the decision maker. It is submitted that the Adjudicator had acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing his creditability but no details are given.  No arguments are advanced as to how the Judge and this court have erred.

8.In the Judgment, at [11] and [12], we pointed out that 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, 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.  Then at [13], we pointed out that in determining an appeal, the Court of Appeal would focus on the decision of the Judge and would only reverse that decision if it could be demonstrated that the Judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

9.In the present case, the Director had considered and rejected the applicant’s non-refoulement claim in respect of all the applicable grounds. The Board did not believe in the applicant’s account and considered his assertions not credible.  Besides, the Board assessed that there is adequate state protection available to the applicant and there are many places where he can relocate in India.  As to the hearing before the Judge, it was noted that no ground for seeking relief was given in the applicant’s Form 86 or affirmation.  The judge decided that in the absence of any legal error or procedural unfairness in the decisions being shown by the applicant, he could not see any prospect of success in the intended judicial review.  The judge also did not find any failure on both the Director and the Board to apply the high standards of fairness in their consideration and assessment of the applicant’s claim.     

9.                There is a disconnect between the matters now raised by the applicant in his Notice of Motion and what he had argued before the Judge.  Moreover, contrary to the applicant’s assertion, both the Director and the Board have given detailed and sufficient reasons for their decision.  On the other hand, the applicant has given no particulars as to how this court has erred in the Judgment and no details have been given in respect of any of the grounds.

10.Lastly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.For the above reasons, the statutory requirements for giving leave to appeal are not met. Accordingly, we dismiss the Notice of Motion.

The applicant, unrepresented, acted in person.