Re Saddam Husain

CACV 306/2021

[2021] HKCA 1701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 306 OF 2021

(ON APPEAL FROM HCAL 2782/2018)

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Before: Hon Barma JA and Lisa Wong J in Court

Date of Hearing: 1 November 2021

Date of Judgment: 15 November 2021

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge To (“judge”) given on 4 June 2021 refusing leave to the applicant to apply for judicial review[1]. The intended judicial review application (as amended) was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 31 August 2018 (“Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 9 March 2016 and 29 December 2016 rejecting the applicant’s non-refoulement claim (respectively “Director’s 1^st Decision” and “Director’s 2^nd Decision, collectively “Director’s Decisions”).

Background

2.The applicant is a national of India.  He entered Hong Kong on 21 June 2014 and was permitted to stay as a visitor until 5 July 2014. The applicant overstayed and was arrested on 6 July 2014.  He lodged a non-refoulement claim on 8 July 2014.

3.The applicant’s claim was based on threats from family members of his late girlfriend, who are allegedly politically well-connected.  His late girlfriend’s family puts the blame on him for her suicide, which was allegedly fuelled by an argument between them which had occurred previously. The details of the applicant’s claim have been summarised by the judge at [11] to [18] of the CALL-1 Form.

4.By the Director’s 1^st Decision, which covered the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4], the Director decided against the applicant’s claim.

5.Thereafter, having invited the applicant to provide any additional materials or facts relevant to his claim (in particular in relation to the BOR 2 risk^[5]), to which invitation the applicant did not respond, the Director also assessed the applicant’s claim based on the BOR 2 risk, and decided against him by the Director’s 2^nd Decision.

6.The applicant appealed to the Board.  After a hearing on 14 June 2018, and having assessed the applicant’s claim on all applicable grounds, the Board dismissed the appeal by way of the Board’s Decision.

7.At [44] to [48] of the Board’s Decision, the Board found that on the evidence, the applicant’s claim was incredible, unreliable and implausible.  The Board held that the applicant had failed to establish any risk of harm if he were to return to India.  The Board was also satisfied at [58] and [70] that state protection would be available for the applicant, and at [74] that internal relocation would be viable.

The judge’s decision

8.The applicant filed a Form 86 on 30 November 2018 (as amended) against the Board’s Decision, which set out a ground for judicial review stating that the Board’s Decision “was not carefully consideration”. In a letter attached to the Form 86, the applicant merely repeated his fear of returning to India and the circumstances of his case which had already been canvassed before the Director and the Board.

9.The applicant did not set out any further grounds in his supporting affirmation.

10.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.After summarizing the facts and background of the case and giving due consideration to the Director’s Decisions and the Board’s Decision, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [26] to [28] of the CALL-1 Form:

“26. The Applicant disagreed with the Board’s assessment of his risk of harm. The intended judicial review is a challenge of the finding of facts by the Board. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

27. Having rigorously examined the [Board’s Decision], the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. The [Board’s Decision] was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success.

Conclusion

28.  For the above reasons, leave was granted for the Applicant to amend the application by substituting the Board for the Director and to file the application out of time; but the amended application for leave to apply for judicial review is refused.”

Grounds for appeal

12.In the Notice of Appeal filed on 11 June 2021, the applicant contended that:

“The High Court refused my leave to apply for judicial review, but he have no any point to refuse it.

…

The judge did not listen any of my case story from me but he tell my case story.

The court give me only five for my hearing, I could not tell anything from this shor[t] time.

Finally I want to say the court [judgment] is 100% wrong.”

13.In his written submissions dated 17 September 2021, in addition to repeating the circumstances of his case, the applicant submitted that, in essence, the judge failed to find errors in the proceedings or process, which the applicant contended was “full of error”.   Further, he contended that the judge “[did] not want to find” these errors.

14.We heard the appeal on 1 November 2021.  The applicant appeared at the hearing, contending that he wished to adduce new documentary evidence in support of his claim, but that he has been unable to obtain the same by reason of its location in India.  This cannot assist the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met.  Not only did the applicant fail to identify what these documents are, he did not state in what way they are relevant to his claim.  Further, the applicant has had ample opportunity to obtain the documents from India since the lodgment of his non-refoulement claim in 2014.  Thus, the new evidence, even if available, would not have assisted the applicant.  Upon further enquiry by the court, the applicant confirmed that he had already explained everything related to his case in his Notice of Appeal and written submissions.

Discussion

15.The Notice of Appeal contains no valid ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify errors on the part of the judge that would justify this court in intervening.  The complaints against the judge for not listening to the applicant’s stay or giving him sufficient time to make his case are obviously unfounded as there was no hearing before the judge, the applicant having failed to request one.  

16.Turning to the written submissions, the assertions stated therein are too vague to merit any or any serious consideration. The applicant has not condescended to any particulars as to his allegations against the judge, nor has he specifically identified the so-called “errors” in the proceedings.

17.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant appeared in person