Re Mohomed Raseen Mohomed Faizal

CACV 280/2021

[2022] HKCA 210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 280 OF 2021

(ON APPEAL FROM HCAL NO. 2689 OF 2018)

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Before :  Hon Cheung and Yuen JJA in Court

Date of Judgment :  10 February 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 dated 17 May 2021 of Deputy High Court Judge K W Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 6 September 2018.

2.Despite the directions of the Registrar of Civil Appeals of 4 August 2021 given to the applicant, the applicant failed to lodge the appeal bundles by the stipulated time. Paragraph 52 of Practice Direction 4.1 has clearly stated that non-compliance with the Registrar’s direction could result in the eventual dismissal of the appeal. We will, however, deal with the present application on paper based on the documents filed by the applicant.

2)  Background

3.The applicant is a national of Sri Lanka. He entered Hong Kong in January 2003 as a visitor but overstayed. He raised a non-refoulement claim in July 2007 on the basis that if he returned he would be harmed or killed by members of the United National Party as he had changed his allegiance from that party to the rival, People’s Alliance Party.

4.The details of the applicant’s claim have been summarized by the Judge at [5] to [10] of the CALL-1 Form.

3)  The Director’s Decisions

5.The Director of Immigration (‘the Director’) decided against the applicant’s claim on 25 November 2016. The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (‘BOR 3 and BOR 2’), as well as his other statutory and convention rights against persecution apart from torture risk (which was previously dismissed by the Immigration Department).

4)  The Board’s Decision

6.The applicant appealed against the Director’s Decisions to the Board. After a hearing held on 26 June 2018, the Board dismissed the applicant’s appeal against the Director’s decisions on 6 September 2018.

7.The Board held that the material elements of his account can be given no credence. It was found that none of the applicant’s assertions can be given any credence other than his nationality and religion. The applicant did not raise any non-refoulement claim as soon as possible after arriving in Hong Kong. There was no evidence provided to show that the applicant was politically involved as claimed. The applicant knew almost nothing about his political group. The applicant failed on all applicable grounds.

5)  Decision of the Judge

8.The applicant filed a Form 86 with supporting affirmation before the Judge.

9.The Judge assessed the applicant’s documents and held that the grounds alleged were only the applicant’s opinions without specifics. No error of law in the Board’s decision was found.

6)  Grounds of appeal

10.The applicant simply stated in his notice of appeal that he wanted to challenge the decision.

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 for his appeal.

13.We see no error in the Judge’s decision. Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person