Mohammad Sharif v. Torture Claims Appeal Board

CACV 287/2021

[2021] HKCA 1552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 287 OF 2021

(ON APPEAL FROM HCAL 1044 OF 2018)

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Before: Hon Chow JA and ST Poon J in Court

Date of Written Submissions: 24 September 2021

Date of Hearing: 25 October 2021

Date of Judgment:  1 November 2021

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JUDGMENT

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

1.This is an appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 20 May 2021 refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 29 May 2018. The Board dismissed the Applicant’s appeal against the first and second decisions of the Director of Immigration (“the Director”) dated 17 April 2015 and 27 June 2017 respectively rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.The Applicant is a national of India.  He came to Hong Kong as a visitor on 25 May 2007, and surrendered to the Immigration Department on 24 September 2007 after overstaying.  On 23 August 2013, he lodged a torture claim[1].  After that claim was rejected, the Applicant lodged a supplementary claim form on 27 January 2015 seeking non-refoulement protection on all applicable grounds.

3.The Applicant claims that if refouled to India, he would be at risk of being harmed or killed by his uncle’s sons over a land dispute in his home district.  Details of the Applicant’s claim have been summarised by the Judge at §§2-6 of the CALL-1 Form.

4.By a Notice of Decision dated 17 April 2015, the Director rejected the Applicant’s non-refoulement claim on the following grounds: BOR 3 risk[2] and persecution risk.[3]  By a Notice of Further Decision dated 27 June 2017, the Director rejected the Applicant’s claim on all applicable grounds for non-refoulement protection including BOR 2 risk[4] (collectively, “the Director’s Decisions”).

5.The Applicant appealed the Director’s Decisions to the Board.  On 2 February 2018, the Board heard the appeal.

6.On 29 May 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decisions (“the Board’s Decision”).  The Board was concerned with the Applicant’s credibility (see Board’s Decision at §§22-27), and concluded that the Applicant failed to substantiate any of the applicable grounds based on BOR 3 risk (§§11-15), BOR 2 risk (§16), and persecution risk (§§17-21).

THE JUDGE’S DECISION

7.On 8 June 2018, the Applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review of the Board’s Decision.

8.In the Form 86, the Applicant merely stated that he rejected the Board’s Decision as it disregarded his dangerous situation in his home country without providing any details or particulars (see Form CALL-1 at §12).

9.The Judge emphasised that judicial review does not operate as a rehearing of a non-refoulement claim (§13).  He found that both the Director and the Board had established that the Applicant could relocate to other parts of India.  Citing TK v Jenkins & Anor [2013] HKC 526, the Judge considered that if the risk of harm is a localised one, and it is not unreasonable or unsafe for an applicant to relocate to another part of the country, there is no justification for affording non-refoulement protection (§14).

10.The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny (§15).  The Judge was satisfied that the Board had correctly set out the law and key legal principles and observed a very high standard of fairness (§15).  The Judge did not find any error of law or procedural unfairness in the Board’s Decision, and was not satisfied that there was any prospect of success in the Applicant’s intended application for judicial review (§§15-16).

11.Accordingly, on 20 May 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.

THIS APPEAL

12.In his Notice of Appeal dated 1 June 2021, the Applicant stated that he rejected the decision of the court as it disregarded his dangerous situation in his home country.  As the Notice of Appeal did not contain any proper grounds of appeal, the Applicant was asked to file a Supplemental Notice of Appeal.  In his Supplemental Notice of Appeal dated 29 July 2021, the Applicant alleged that the Judge copied the Board’s Decision and failed to show “any cause”.  The Applicant did not point to any specific error in the Judge’s decision or reasoning.

13.At the hearing of the appeal before this court on 25 October 2021, the Applicant said that the Board had failed to deal with an incident mentioned by him at the hearing before the Board, namely, that his brother had been killed by his uncle’s sons.  The Applicant also said that he had a family with 2 daughters in Hong Kong.

DISCUSSION

14.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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

15.The Court of Appeal would only reverse the decision of a judge refusing to grant leave to apply for judicial review if an applicant 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 (see Re Iqbal Parvaiz [2020] HKCA 76 at §7.1).

16.The Applicant has failed to identify any errors of law or failure by the Judge to take into account relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.

17.The Applicant’s allegation that the Board failed to consider the incident in which his brother was killed by his uncle’s sons was not raised in the Form 86, and therefore is not a matter which the Applicant could rely upon whether in the proceedings below and in the present appeal.  The fact that the Applicant has a family with 2 daughters in Hong Kong is not a ground for non-refoulement protection.

18.For the above reasons, the present appeal has no merits and is dismissed.

The Applicant, unrepresented, appeared in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.