Re Md Tarik

CACV 358/2021

[2022] HKCA 149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 358 OF 2021

(ON APPEAL FROM HCAL NO. 2986 OF 2018)

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Before:  Hon Cheung and Chow JJA in Court

Date of Judgment:  26 January 2022

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.This is an appeal against the decision of Deputy High Court Judge P Li who refused to grant extension of time to the applicant to apply for leave to commence and dismissed his application to apply for judicial review.  The intended challenge is against the decision of the Torture Claims Appeal Board (‘the Board’)  on 25 April 2017.

2.Despite the directions of the Registrar of Civil Appeals of 22 July 2021 from the High Court to the applicant, the applicant failed to lodge the skeleton argument by the stipulated time.  The applicant has consented to the appeal to be disposed of on paper without an oral hearing and accordingly we will deal with this application on paper.

2)  Background

3.The applicant is a national of India.  He was allowed to come into Hong Kong as a visitor but overstayed since April 2008.  During the time while he has been in Hong Kong, he committed various criminal offences.  He raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by Azad and Miraj, who are the two brothers of Muna, because the applicant was the only witness when Muna was seriously injured by the applicant’s friend.

4.The details of the applicant’s claim have been summarized by the Judge at [5] to [11] of the CALL-1 Form.

3)  The Director’s Decisions    

5.The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 23 February 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution.

6.The Director decided against the applicant’s right to life claim on 28 February 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

7.The applicant appealed against the Director’s Decisions to the Board.  After a hearing held on 28 March 2017, the Board dismissed the applicant’s appeal against the Director’s decisions on 25 April 2017, which has taken into account the Director’s Further Decision.

8.The Board held that it was not convinced that the applicant was being chased by the brothers of Muna on the balance of probabilities.  The Board found the applicant’s case was vague and unbelievable in both his oral and written evidence.  The Board held on the whole it did not find the applicant was telling the truth.  The Board found that the alleged death threat that the applicant heard over the phone was not enough to establish real and substantial risk of harm.  There was no evidence to suggest that Muna’s brothers were resourceful enough to look for the applicant throughout India.

5)  Decision of the Judge

9.The applicant’s Form 86 was filed one year and five months out of time.

10.The Judge held that the relevant decisions were sent to the applicant according to his last known address, and he bore the consequence of problems in correspondence due to his change of address.  The Judge held that it was unreasonable for the applicant to take more than a year to file his Form 86 application.  Further, there were no merits in the applicant’s intended application.  There was no error of law to be found on the Board’s decision.

6)  Grounds of appeal

6.1   The applicant stated in his notice of appeal that the Court failed to appreciate or give proper regard to state acquiescence.  The Board failed to make sufficient enquiry.  The Board did not give the applicant chance to arrange relevant evidence.  

7)  Our view

11.We will repeat the approach of this Court in dealing with cases of this nature :

(1)  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 claims cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant 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.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

12.In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground of appeal.  We see no error in the Judge’s decision. Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person