Re Mohammad Shakil

CACV 326/2022, [2023] HKCA 679

On Appeal From [2022] HKCFI 917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 326 OF 2022

(ON APPEAL FROM HCAL 2135 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving the judgment of the court):

1.This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  set out in the Form CALL-1 dated 1 April 2022, by which the Deputy Judge, inter alia, refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 917).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 27 September 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 7 December 2017 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.The appeal was listed to be heard on 5 December 2022.  The applicant was directed to lodge two sets of skeleton argument on or before 7 November 2022 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper. The direction and the warning were communicated to the applicant by the Notice of Hearing dated 5 October 2022.  However, the applicant did not lodge any skeleton argument in support of his appeal.

4.As the applicant failed to lodge a skeleton argument by the stipulated time, the applicant was deemed to have waived his right to have an oral hearing and elected to have his appeal disposed of on paper.  The hearing date was thus vacated on 10 November 2022.

5.Subsequently, by way of a Request for Dismissal of Appeal dated 18 April 2023, the applicant requested to withdraw the present appeal.

6.On the basis of his request to withdraw his appeal on 18 April 2023, we dismiss the applicant’s appeal.  In any event, his appeal fails for the lack of merit, which we will explain further below.

Background

7.The applicant is a national of India.  He last arrived in Hong Kong on 31 October 2008 and was permitted to remain as visitor until 14 November 2008.  He did not depart and overstayed.  On 5 April 2009, he was arrested by the police and was transferred to the Immigration Department for investigation.  On 8 April 2009, he raised a torture claim by written representation, which was rejected by the Director on 7 November 2013.  He did not make any appeal to the Board. Subsequently, on 27 August 2013, he raised a non-refoulement claim on the basis that he will be harmed or killed by Mohammad Akhtar because he was unable to repay his loan and feared that he would be arrested by the police because Akhtar reported to the police that the applicant owed him money.  Factual details of his non-refoulement claim were summarised by the Deputy Judge at [1] - [6] of the Leave Decision.

8.As noted by the Deputy Judge at [7] - [10] of the Leave Decision, by their decisions respectively dated 7 December 2017 and 27 September 2018, the Director and the Board dismissed his non-refoulement claim on all applicable grounds other than torture risk[1], namely, BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate his non-refoulement claim on all applicable grounds.  In particular, in dismissing his appeal against the Director’s Decision, the Board found the applicant’s claim of fear of harm from his uncle over debts as incredible and in any event state protection and internal relocation would be reasonable and available to him.

The Leave Decision

9.On 5 October 2018, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision.  However, the applicant failed to provide any ground of review.  On 3 March 2022, the applicant attended an oral hearing before the Deputy Judge and an Urdu interpreter was present to provide language assistance.

10.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [11] - [16] of the Leave Decision:

“11.  On 5 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of the application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 12 - 15 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The Appeal

11.On 16 August 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, the applicant claimed that:

“(a)  the Learned Judge had failed to consider all applicable grounds of non-refoulement claims and in particular non-refoulement on the grounds of risk of violation of articles 22 of the Hong Kong Bill of Rights Ordinance;

(b)  the learned Judge was wrong in accepting the adjudicate finding that ‘the only fact established is that the applicant is an Indian male, he faces no risk of any harm at all’ to conclude that the persecution risk failed;

(c)  the findings by the Learned Judge that the adjudicator’s decision to be without fault were irrational;” (sic)

12.Contrary to the directions of the Court dated 5 October 2022, the applicant failed to lodge any written submissions in support of the present appeal.

13.As mentioned above, by a Request for Dismissal of Appeal dated 18 April 2023, the applicant requested to withdraw the present appeal.

Discussion

14.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

16.At the outset, the arguments raised in his Notice of Appeal and written submissions are new and not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  The applicant’s contentions are also general and bare assertions without any specific particulars or evidence in support.  They do not constitute proper grounds of appeal and we refuse to entertain those arguments.  The appeal must fail on this basis alone.

17.In any event, the allegations made by the applicant are bare, vague and general without any evidence or specific particulars in support.  Accordingly, they do not constitute proper grounds of appeal.  Further, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board and we see no basis to interfere with the Leave Decision.

18.For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person