RE SHAIK ABDUL MONIR

CACV 52/2019

[2019] HKCA 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 52 OF 2019

(ON APPEAL FROM HCAL NO. 922 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 25 July 2019 ([2019] HKCA 771), the Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) dated 23 January 2019 refusing to grant him leave to apply for judicial review.

2.  By a notice of motion dated 24 September 2019, the applicant seeks leave to appeal to the Court of Final Appeal on the following grounds:

“1. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration on 25 July 2019, refusing my application for judicial review.

2. There is some error in law in my decision. The decision maker just relied on COL information and my previous facts which were favour on rejecting my claim. Actual life occur different situation than mentioned COL information, officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

3. Procedural unfairness. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim.

4. The Judge did not apply the law properly.”

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 25 September 2019, the applicant should have lodged with the court his written submissions on or before 8 October 2019 but only did so on 9 October 2019.  As there is only a delay of one day, we are prepared to excuse it and allow the written submissions to stand.  There, the applicant stated that the high standard of fairness was required in determining his claim for non-refoulement protection as it would affect his substantive right and made him liable to be removed.  He also complained of procedural unfairness on the part of the Torture Claims Appeal Board (“the Board”) in failing to properly assess his credibility.  He had cited some cases and legal principles in relation to torture claim in support of his contentions. 

4.  The Registrar of Civil Appeals had further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  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 25 July 2019, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  Firstly, the grounds of appeal against the Judge’s decision were general assertions without particulars or proper basis and are not viable grounds of appeal.  Secondly, his complaints against the Board’s decision was a request to this Court to reassess his case which was unjustified.  As this Court repeatedly emphasised, assessment of evidence, materials on country of origin information, risk of harm and state protection are primarily within the province of the Board (and the Director) and the court would not intervene unless there are valid public law grounds.  As stated at [10] of our judgment, we agreed with the Judge’s decision that the applicant’s challenges against the Board’s decision were unmeritorious and we found no errors of law or procedures in the Judge’s decision.

6.  In our judgment, none of the grounds stated in the notion of motion and written submissions can constitute valid grounds of appeal to the Court of Final Appeal. None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

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

CACV 52/2019

[2019] HKCA 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 52 OF 2019

(ON APPEAL FROM HCAL NO. 922 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 23 January 2019, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 22 February 2019, the applicant was directed to lodge his skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 28 May 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.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 132.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of India. He came to Hong Kong on 16 July 2014 as a visitor and was permitted to stay until 30 July 2014.  He did not depart and overstayed since 31 July 2014.  He was arrested by the police and was handed over to the Immigration Department for investigation.  On 12 August 2014, he lodged a non-refoulement claim.  On 10 January 2015, the applicant requested to withdraw his claim and he was removed from Hong Kong on 24 January 2015.  On 25 December 2015, he attempted to seek entry into Hong Kong again but was refused permission to land and was repatriated to the Mainland China.  On 14 February 2016, he sneaked into Hong Kong and was arrested by the police. On 16 February 2016, he lodged his non-refoulement claim again.  His claim was based on his fear that if he were returned to India, he would be harmed or even killed by the family of his girlfriend Tahseen as they did not approve his relationship with her. 

5.  By a Notice of Decision dated 17 November 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.  

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 3 May 2018, the Board dismissed the appeal on 18 May 2018.  At the hearing, the applicant was represented by a lawyer of the Duty Lawyer Scheme and the Director was represented by Government Counsel to oppose the appeal.  Although the applicant was legally represented, he refused to answer any question and thus the Board had to rule the applicant’s case based on the written materials provided by the Director.  After considering all the evidence, the Board found many discrepancies and inconsistencies in the applicant’s account of event, including his assertions as to the nature of the alleged source of harm inflicted on him.  The Board rejected the applicant’s case on the issue of credibility. For the aforesaid reasons, the applicant’s appeal was dismissed on all applicable grounds.

7.  On 24 May 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions and advanced the following grounds for his intended challenge:

(i)   the Director had failed to maintain high standard of fairness for failing to attach sufficient weight to state acquiescence;

(ii)   the Director had failed to consider collusion of police and the political circles;

(iii)   the Director selected Country of Origin Information (“COI”) that suited his pre-conceived conclusion but failed to give weight to the information that supported the applicant’s case;

(iv)   the Board had not made sufficient enquiry before making decision;

(v)   the Board was wrong to require evidence from the applicant as he was in custody of the Immigration Department; and

(vi)   the Board had failed to give the applicant sufficient chance to arrange evidence in support of his case.

The Judge’s decision

8.  On 23 January 2019, the Judge gave his 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 [16] – [27] for his refusal to grant leave:

“DISCUSSION

The Director’s Decision

16. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision with wider power than this Court to make investigations in the matter. The Board had heard the appeal and made its Decision.

17. The applicant is unable to state any exceptional circumstances for his application.

18. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

19. The applicant appeared before me as he requested a hearing himself.

20. He confirmed that he was represented by a lawyer when he appeared before the Adjudicator in the appeal hearing against the Director’s Decision. He admitted that he was unwilling to cooperate with the Adjudicator by refusing to answer his questions despite having been advised by his lawyer.

21. He was unable to give any explanation for his attitude towards the Adjudicator. He only said that he was asked to give evidence to prove, but he had no evidence to prove his case.

22. I consider that it was not a good reason for him to refuse answering the Adjudicator’s questions. The Adjudicator has his duty to make investigation into the matter in the appeal hearing.

23. I consider that the Adjudicator was entitled to attach very little weight to the applicant’s story. There was nothing amiss in the appeal hearing and there is no reason for the applicant to have judicial review of the Board’s Decision.

24. Grounds (1) to (4) are simply his comments without any evidence in support. They fail.

25. As to ground (5), the Adjudicator was entitled to request evidence from the applicant to prove his case. He refused to cooperate with the Adjudicator without good reason. This ground fails.

26. As to ground (6), it is untrue as revealed by the facts above.

CONCLUSION

27. For the reasons above, I find that the applicant’s application for judicial review has no reasonable chance of success. I refuse granting leave for his judicial review. Accordingly, I dismiss his application.”

The Appeal

9.  The applicant filed a Notice of Appeal on 1 February 2019 and provided the following ground of appeal:

“The grounds of this appeal are that the gravity of my circumstances have noted (sic) been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

Discussion

10.  The ground of appeal put forward by the applicant failed to identify any error in the Judge’s decision and is not a valid ground of appeal.  Further, the Judge had clearly pointed out at [9] of CALL-1 Form that the Board had provided every opportunity to the applicant to explain his case at the appeal hearing and despite the advice by his Duty Lawyer, the applicant refused to answer any question.  The Judge had rightly found at [23] of the CALL-1 Form that the Board was entitled to attach very little weight to the applicant’s story based on the written materials and the applicant’s challenges against the Board’s decision was without merit.  We agree with the Judge’s findings and find nothing amiss from his decision.

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