Case Detail

CACV 487/2018

[2019] HKCA 594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 487 OF 2018

(ON APPEAL FROM HCAL NO 366 OF 2018)

_______________

BETWEEN
	ALAM MAHTAB	Applicant
and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

_______________

Before:

Hon Barma, Poon and Au JJA in Court

Date of Written Submissions:	25 March 2019
Date of Judgment:	30 May 2019

____________________

J U D G M E N T

____________________

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

1. By a judgment dated 18 January 2019 ([2019] HKCA 231), this Court (Hon Barma, Poon and Au JJA) dismissed the applicant’s appeal against the decision of Campbell-Moffat J dated 26 September 2018 refusing to grant leave to him to apply for judicial review. The intended judicial review was against the decision of the Board dated 22 February 2018. The applicant now seeks leave to appeal to the Court of Final Appeal.

2. The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the judgment. We will not repeat them here.

3. By a notice of motion dated 12 March 2019, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

4. In the Notice of Motion, the applicant set out the following grounds :

“ I would like to inform court, there is some error in law in my decision. Decision maker just relied on col (COI) information and previous facts which were favour on rejected my claim. Actual life occur different situation then mentioned col (COI) information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim.”

5. In compliance with the direction given by Master Au-Yeung on 13 March 2019, the applicant lodged his written submission on 25 March 2019. In his written submissions, the applicant reiterated that it would not be safe for him to return to his home country. He complained against the Director for failing to adequately consider the relevant country of origin information (“COI”) and wrongly concluded that there was no state acquiescence. He also complained the Board for failing to attain the high standard of fairness and cherry-picked COI which was against his case in order to dismiss his claim for non-refoulement protection.

6. We have duly considered the applicant’s notice of motion and his written submissions. Pursuant to paragraph 3 of Practice Direction 2.1, this application is processed on papers without any oral hearing.

7. Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. For the reasons that we gave in our judgment of 28 February 2019, we did not see any prospect of success in the applicant’s intended appeal against the Judge’s order. None of the questions raised by the applicant in the notice of motion or in his written submissions involve any question of great general or public importance is such that it ought to be submitted to the Court of Final Appeal for decision. The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met.

8. Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

(Aarif Barma)	(Jeremy Poon)	(Thomas Au)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant, unrepresented, acted in person

CACV 487/2018

[2019] HKCA 231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 487 OF 2018

(ON APPEAL FROM HCAL NO 366 OF 2018)

_______________

BETWEEN
	ALAM MAHTAB	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

_______________

Before:

Hon Barma, Poon and Au JJA

Date of Judgment:

28 February 2019

_______________

J U D G M E N T

_______________

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

1. This is an appeal against the decision of Campbell-Moffat J (“the Judge”) on 26 September 2018, refusing to grant the applicant leave for judicial review.

2. Pursuant to the Order made by Master Au-Yeung on 7 November 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 12 February 2019). The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing. We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur[2018] HKCA 247; Re Miha Md Limon[2018] HKCA 278; Re Ali Arshad[2018] HKCA 304; and Re SK Sarfaraj[2018] HKCA 307.

3. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2014. We shall not repeat the same here.

4. Briefly stated, the applicant is a national of India. He came to Hong Kong as a visitor on 31 December 2013 and was allowed to stay until 14 January 2014. He did not depart and overstayed since 15 January 2014. He was arrested by the police on 7 February 2014. On 9 February 2014, he lodged his non-refoulement claim. His claim was based on his fear of being harmed, or even killed, by the supporters of Trinamool Congress party (“TMC”) because he had some long term private disputes with TMC for being a supporter of the Communist Party of India (Marxist) (“CPIM”).

5. By a Notice of Decision dated 30 November 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 12 June 2017, the Director also rejected the applicant’s claim BOR 2 risk.

6. The applicant then appealed to the Torture Claims Appeal Board (“the Board”). After the hearing on 20 September 2017, the Board dismissed the appeal on 22 February 2018. At the hearing, the applicant admitted that he had not been harmed after the incident of suspected attack by TMC people in November 2012 in which the applicant alleged that a suspected TMC member tried to shoot him with a gun, but fortunately he managed to duck down and avoided being hurt. There were other incidents of attacks, which were caused by private disputes of local rival political parties and the applicant sustained injuries during his fights with the TMC people. The Board found that these experiences did not meet a minimum level of severity. Further, with reference of the objective country of origin information (“COI”), there was no suggestion of any untoward state involvement and the applicant could reasonably re-locate in his home county to avoid any future risk of harm/attack. With the aforesaid reasons, the Board found that the applicant had failed to establish his non-refoulement claim under all applicable grounds.

THE JUDGE’S DECISION

7. The intended application for judicial review was in respect of the Board’s decision. The applicant failed to provide any ground for his intended challenge in Form 86 and in his supporting affirmation both filed on 7 March 2018.

8. On 26 September 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review. In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [10] – [12] for her refusal to grant leave :

“ Grounds of review
10.  There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
11.  Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.
12.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”

THE APPEAL

9. The applicant filed the Notice of Appeal filed on 28 September 2018 in which he set out the following ground of appeal :

“ The plaintiff (applicant) will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

DISCUSSION

10. The applicant had failed to provide any ground of review at the lower court hearing before the Judge. This Court will not generally entertain new arguments that are fact-and-evidence sensitive which have not been canvassed at the lower court and for which leave has not been sought within time: see Re Daljit Singh[2018] HKCA 328; Re Qadir Sher[2018] HKCA 160; United Muslim Association of Hong Kong v. Yusuf Yu[2018] HKCA 451.

11. Further, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court would only examine the decision of the judge in light of the grounds advanced by the applicant, see: Re Shrestha Santosh Kumar[2018] HKCA 583. If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for leave to apply for judicial review. We see no merit in the ground of appeal put forward by the applicant in this appeal as it does not identify any error in the Judge’s decision. The appeal plainly has no prospect of success.

12. For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.

(Aarif Barma)	(Jeremy Poon)	(Thomas Au)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant, unrepresented, acting in person

ALAM MAHTAB v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

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