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CACV 218/2018
[2018] HKCA 579
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 218 OF 2018
(ON APPEAL FROM HCAL 554/2017)
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IDREES FAISAL |
1st Applicant |
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FAISAL SAIMA |
2nd Applicant |
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RE: F |
3rd Applicant |
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RE: A |
4th Applicant |
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RE: F |
5th Applicant |
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RE: I |
6th Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent
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and |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party
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Before: Hon Lam VP, Yuen and Chu JJA in Court
Date of Hearing: 30 August 2018
Date of Judgment: 3 September 2018
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J U D G M E N T
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Hon Lam VP (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Woodcock on 7 June 2018 refusing leave to the applicants to apply for judicial review. The applicants are a family of six from Pakistan and the first five applicants arrived in Hong Kong on 20 June 2013 and were permitted to remain for seven days. The applicants did not leave Hong Kong and overstayed since 28 June 2013. On that same day they surrendered to the Immigration Department and later lodged non-refoulement protection claims. The 1st and 2nd applicants are married to each other and the other applicants are their children. The 6th applicant is a son born in Hong Kong on 30 December 2014.
2. The Director decided against the claims on 4 December 2015. The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s Decision”). By a Further Decision dated 13 February 2017, the Director dismissed the claim based on BOR2 risk.
3. The applicants appealed to the Torture Claims Appeal Board. The Board held a hearing on 30 March 2017. The hearing was adjourned to 25 May 2017 to allow the brother of the 1st applicant to testify for the applicants. On 28 July 2017, the Board dismissed the appeals on all applicable grounds (including BOR2 risk) (“the Board’s Decision”).
4. The intended judicial review was in respect of the Director’s Decision and the Board’s Decision. The Form 86 filed by the applicant on 24 August 2017 did not contain any ground for judicial review.
5. As held in Re Moshsin Ali [2018] HKCA 549, as the Board’s Decision had overtaken the Director’s Decision, the court would only focus on the Board’s Decision in an application for judicial review.
6. In the affirmation of the 1st applicant dated 24 August 2017, he gave the following grounds for judicial review in respect of the Board’s Decision:
(1) The Board failed to make sufficient enquiry before its decision;
(2) The Board failed to take into account the seriousness of the threats received by the applicants as well as the contents and relevance of the medical reports submitted.
7. The relevant facts and background were set out by the judge at [3] to [12] of the CALL-1 Form in HCAL 554/2017, which is published as [2018] HKCFI 1163 on the judiciary Legal Reference website. We shall not repeat the same in this judgment.
8. After reviewing the materials, the judge gave the following reasons in refusing leave at [19], [22] to [27] of the CALL-1 Form:
“ 19. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the submissions made on behalf of all the applicants. The adjudicator analysed the material, claim and evidence and then explained his findings. The applicants’ complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.
…
22. The grounds against the adjudicator are that he failed to make sufficient enquiry before his decision, he failed to take into account the seriousness of the threats received by the applicants as well as the contents and relevance of the medical reports submitted.
23. Having read the adjudicator’s decision, I am satisfied that he took into account and considered the evidence and case of the applicants in its entirety. This means he did take into account the threats received by the applicants as well as the contents of any document submitted before he made any decision. In fact, he repeats the contents of the medical report. He evaluated the evidence and gave reasons for his findings; findings I will not disturb. There are no merits in the grounds against the adjudicator.
24. Despite my stance above, even if the Director could be or was a respondent, the Director found the claims did not amount to torture and/or CIDTP and/or persecution. The applicants did not rely on the extended concept of State acquiescence. The Director concluded that there was no evidence that State authorities or others acting in an official capacity knew or had reasonable ground to believe that any acts of torture or ill-treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons.
25. As for the criticism that the Director did not properly consider COI objectively before concluding there was state protection, I am satisfied from reading his decision that he considered relevant and up-to-date COI objectively before he made such a finding. I will not interfere with that finding. There are no merits in the grounds against the Director.
26. I do not find any ground that shows there was an error of law made by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. This applies also to the Director’s decision.
27. In my judgement, the applicants’ claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”
9. In the notice of appeal of 7 June 2018 the applicants only stated one ground of appeal:
“ I would like to reject and review [the Board’s Decision]. They disregard our dangerous situation.”
10. In the skeleton argument dated 2 August 2018, the applicants submitted that:
(1) A colleague of the 1st applicant was killed before the hearing before the Board and that was not taken into account by the Board;
(2) The father of the 1st applicant was robbed at his home at gunpoint as reported in a Ummat newspaper on 20 July...
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