CACV 275/2022
[2022] HKCA 1565
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 275 OF 2022
(ON APPEAL FROM HCAL NO 1112 OF 2019)
________________________
BETWEEN |
| | HABEEBULLA FAIZ | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
_____________________
| Before: | Hon Chow JA and K Yeung J in Court |
| Date of Hearing: | 24 October 2022 |
| Date of Judgment: | 14 November 2022 |
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J U D G M E N T
_______________
Hon Chow JA (giving the Judgment of the Court):
1. On 18 July 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 7 July 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 15 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 August 2018.
BACKGROUND
2. The Applicant is a national of Sri Lanka. He came to Hong Kong as a visitor on 5 March 2005, and was permitted to stay until 4 April 2005. He did not depart from Hong Kong upon the expiry of his limit of stay, and was arrested by the Police on 12 March 2006. On 8 May 2006, he lodged a torture claim, which was later withdrawn on 8 October 2012. On 25 October 2013, he lodged a non-refoulement claim. Since he had previously withdrawn his torture claim, the non-refoulement claim was assessed by the Director on all applicable grounds other than torture risk. The basis of his claim was that, if refouled, he would be harmed or killed by members of the Liberation Tamil Tigers Elam (“LTTE”), because he had acted as an informant for the Sri Lanka Army, and also because he had once been kidnapped by members of the LTTE (during which time he was tortured) and he later informed the Army of the whereabouts of his kidnappers which led to one of them being shot and arrested. He also feared that, as a minority Muslim, he would face harm in Sri Lanka where there had been an increasing number of attacks against Muslims. Details of the Applicant’s claim were summarised by the Judge at §§4-6 of the CALL-1 Form ([2022] HKCFI 1831).
3. By a Notice of Decision dated 9 August 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds other than torture risk, ie, BOR 2 risk[1], BOR 3 risk[2], and persecution risk[3].
4. The Applicant appealed the Director’s decision to the Board. On 15 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§10-12 of the CALL-1 Form, as follows:
“[10] Having considered all the evidence, the Board made the following findings. First, the Board found that, between 2003 to 2004, the applicant was only extorted money and threatened by the LTTE. He was not physically harmed [108]. Secondly, the applicant claimed that he was tortured by the LTTE members. However, the Board considered the methods adopted by the LTTE during the said detention, such as the duration, weapons used, injuries sustained and treatments received, and found that the LTTE members had no real intention to kill the applicant. They simply wanted to revenge against the applicant for being an informant [113]. Meanwhile, the Board also noticed that the applicant returned home, where he was abducted, after the kidnap incident [115]. Thirdly, the medical examination the applicant had undergone in Hong Kong in 2007 did not assist his claim [116]. Fourthly, despite knowing that the LTTE members were looking for him, he still returned home after staying in his relative’s for three days, which showed that he was not afraid of the possible reprisals from the LTTE. Besides, the LTTE did not inflict any harm on his family during the visits [117]-[122]. Simply put, despite acknowledging that the applicant was a victim of assault, the Board refused to accept that the LTTE intended to seriously harm or kill the applicant [123]-[138].
[11] Insofar as his fear that he would be harmed as a minority, the Board found that, according to the country of origin information (‘COI’), the violence against the Muslims was restricted to certain areas and the fact that the applicant’s family were still living in the same area unharmed indicated that he would not face any real risk of harm if returned [139]-[151].
[12] Further, upon a close examination of the COI, the Board found that state protection would be available to the applicant [152]-[184] and that internal relocation was also a viable alternative [185]-[197].”
THE JUDGE’S DECISION
5. On 25 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was set out in the Form 86. In his supporting affirmation filed on the same day, the Applicant said he disagreed with “a decision from Immigration” and he still had a problem (or problems) in his home country.
6. On 7 July 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[16] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).
[17] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
[18] In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …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 the decision of the Board.’
[19] Those grounds above are not valid reasons to challenge the Board’s Decision.
[20] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
[21] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”
THIS APPEAL
7. In his Notice of Appeal dated 18 July 2022, the Applicant stated as follows:
“I am not agree with the decision of the court, because the decision maker did not consider my leave application properly. If I return back to my home country, I will face hardship life but the Torture Claims Appeal Board and the Director of Immigration has significantly relied on source of news which is officially recognized or it is just simply hearsay. My enemy is still looking for me.”
8. In his written submissions dated 20 September 2022, the Applicant alleged, inter alia, that:
(1) The learned Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration and the Adjudicator of the Board.
(2) “High standards of fairness” were required in the determination of a torture claim on the part of the decision maker, but the learned Judge reviewed the matter “lightly”.
(3) The learned Judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director, while the Director and Adjudicator were required to give reasons justifying their decision.
(4) The learned Judge did not exercise “greater care and disappointed [him]”.
(5) The learned Judge might not have analysed “[his] claim properly in [his] home country”.
(6) The learned Judge’s decision was unreasonable.
(7) The Adjudicator failed to give sufficient chance to him to arrange relevant evidence to support his non-refoulement claim as well as his appeal to the Board.
(8) He would face hardship if he returned to his home country, and the Board had significantly relied on source of news which was not officially recognized, or was simply hearsay.
9. At the hearing of the present appeal, the Applicant said that (i) he could not go back to his home country in view of the situation there, (ii) he was 23 when he came to Hong Kong and 40 now, and (iii) he had been in Hong Kong for 17 years and had a wife and children in Hong Kong, and wished to remain here.
DISCUSSION
10. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).
11. Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
12. The Applicant’s complaints against the decisions of the Judge, the Board or the Director are all general allegations without particulars, and cannot constitute valid grounds of appeal against the Judge’s decision.
13. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 7 July 2022, and has failed to raise any viable ground of appeal against the Order.
14. The Applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal | (Keith Yeung)
Judge of the Court of
First Instance |
The Applicant, acting in person
[1] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.