Case Detail

CACV 473/2020

[2022] HKCA 714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 473 OF 2020

(ON APPEAL FROM HCAL NO 688 OF 2018)

________________________

BETWEEN
	MD SOHIL	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	1^st Putative Respondent
	DIRECTOR OF IMMIGRATION	2^nd Putative Respondent

________________________

Before: Hon Barma JA and Hon S T Poon J in Court

Date of Judgment: 25 May 2022

___________________

J U D G M E N T

___________________

Hon S T Poon J (giving the Judgment of the Court):

1. On 7 May 2021, this court (Barma JA and S T Poon J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 3 September 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2. The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3. The applicant subsequently applied, by a Notice of Motion filed on 9 June 2021, for leave to appeal to the Court of Final Appeal out of time. The applicant stated in the Notice of Motion that :

“…I would like to inform court some error in law in my decision. Decision maker just relied on COI information and my previous facts which favor on reject my appeal in court and my claims. Actual life occur different situation the mentioned COI information. Board member Director of Immigration and Hong Kong High Court prefers to ignore the overwhelming of the evidence of this 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 appeal and my claims. I am requested to court could you please save my life’s – Bundle of thanks.” [sic]

4. In the affirmation filed on 9 June 2021, the applicant deposed that:

“…I would like to inform court I am Indian national I want to inform court my life is danger if I return go back my home country I have great peril if I return I am requested to court could you please save my life’s bundle of thanks.” [sic]

5. The applicant lodged a written submission in support of the application on 22 June 2021. In the written submission, the applicant reiterated the matters raised in the Notice of Motion and explained why it is unsafe for him to return. He identified a number of alleged errors by the Board and requested legal and interpretation assistance from the Duty Lawyers Service.

6. Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have, therefore, determined the applicant’s application on the basis of the documents filed.

7. We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the application. We nonetheless go on to consider the merits of the application.

8. The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters he has raised.

9. The applicant claimed that the court ignored the violence towards minorities but he failed to provide any particulars for this claim. In our view, this ground is not reasonably arguable before the Court of Final Appeal. As for the rest of the grounds of application, they do not identify any error in our judgment and they are therefore not viable grounds of application.

10. In the written submission, the applicant asked for assistance from the Duty Lawyer Service. The applicant failed to show how this request would have a material impact on the present application and in any event this request should be directed towards the Duty Lawyer Service and not to the court.

11. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12. For these reasons, the notice of motion dated 9 June 2021 is dismissed.

(Aarif Barma)
Justice of Appeal

(S T Poon)
Judge of the
Court of First Instance

The applicant acting in person

[1] See [2021] HKCA 638

CACV 473/2020

[2021] HKCA 638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 473 OF 2020

(ON APPEAL FROM HCAL NO 688 OF 2018)

____________________

BETWEEN
	MD SOHIL	Applicant (Appellant)
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	1^st Putative Respondent
	DIRECTOR OF IMMIGRATION	2^nd Putative Respondent

____________________

Before: Hon Barma JA and S T Poon J in Court

Date of Judgment: 7 May 2021

___________________

J U D G M E N T

___________________

Hon S T Poon J (giving the Judgment of the Court):

1. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 3 September 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 12 April 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 16 October 2015 and 25 January 2017 rejecting the applicant’s non-refoulement claim.

2. The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3. The applicant is a national of India. He entered Hong Kong on 5 April 2014 as a visitor and was permitted to remain until 19 April 2014. He overstayed and was arrested on 28 April 2014. He lodged a non-refoulement claim on 29 April 2014.

4. The applicant’s claim was based on threats from a man known as Sikandar who was said to be an influential man and a person convicted of murder. His case was summarised by the Judge in [1]-[3] of the Form CALL-1^{^[1]}.

5. By his decision dated 16 October 2015 (“the Director’s Decision”), the Director rejected the applicant’s claim having regard to the BOR 3 risk^{^[2]}, the torture risk^{^[3]} and the persecution risk^{^[4]} grounds.

6. By a Notice of Further Decision dated 25 January 2017, the director also assessed the applicant’s claim based on the BOR 2 risk^{^[5]}, and decided against him.

7. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 3 March 2017, the Board dismissed the appeal on 12 April 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection. Primarily, the Board found that the applicant’s information was incredible and conflicting. The Board was also satisfied that state protection would be available for the applicant and that internal relocation would be viable.

The Judge’s Decision

8. The applicant filed a form 86 on 20 April 2018 which contained no ground for seeking relief.

9. In his affirmation in support of the leave application filed on the same day, the applicant contended that:

(1) He was not made aware of the Further Decision; and
(2) There was no translation of the Board’s Decision.

10. The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on paper.

11. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review. The Judge gave the following reasons in refusing to extend time and leave to apply for judicial review at [10] to [14] of the Form CALL-1:

“10. Even if it is true that the Board’s decision had never been interpreted to him, and I do not accept that it is as I note that his present application and supporting affirmation are both in English and hence he would have had legal or interpretation assistance regarding the Board’s decision, that complaint in itself cannot form any valid or proper ground for judicial review of the findings of the Board in rejecting or dismissing his claim, nor is it reasonably arguable for his intended challenge.
11. 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.
12. In the Applicant’s case, 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 him, I do not find any reasonably arguable basis to challenge the finding of the Board. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim 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.
13. 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.
14. 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.”

Appeal to Court of Appeal

12. By a Notice of Appeal filed on 14 September 2020, the applicant stated that (sic):

“I would like to requested court could you please save my life as human been I can’t go back to my home land in India’s everyone knew very critical position in Indian Muslim they are suffering that’s why I am request court safe my life Hong Kong peace and save country”

13. In the affirmation dated 14 September 2020, the applicant exhibited the decision of the Judge.

Skeleton Submissions

14. The applicant failed to comply with the direction made by this Court on 21 January 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

15. The hearing date on 26 April 2021 was therefore vacated and the applicant was debarred from lodging any written submissions. We have dealt with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

16. The only ground of appeal set out in the Notice of Appeal is that it is unsafe for him to return. The applicant did not identify any error on the part of the judge. The applicant did not advance any viable ground of appeal. As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review. In any event, having examined the judge’s decision, we can see no error in it.

17. As for the bare assertion by the applicant that it is unsafe for him to return, we note that the Board dismissed his claim because his evidence was not credible. The Board also found that state protection would be available and internal relocation would be viable. As the applicant failed to substantiate any public law error in the Board’s Decision, there is no basis for the applicant to challenge the above findings by the Board.

18. There is therefore no merit in the appeal and we dismiss the appeal accordingly.

(Aarif Barma)	(S T Poon)
Justice of Appeal	Judge of the
	Court of First Instance

The applicant, unrepresented, acting in person.

[1][2020] HKCFI 2185.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[5] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

MD SOHIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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