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CACV 153/2018
[2018] HKCA 558
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 153 OF 2018
(ON APPEAL FROM HCAL 835/2017)
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| RE: |
ALAM MOHAMMAD NAZIR |
Applicant |
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Before: Hon Lam VP, Yuen and Kwan JJA in Court
Date of Judgment: 29 August 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 Bruno Chan on 27 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of India. On 7 April 2014, he entered Hong Kong as a visitor. He was arrested by the police for overstaying and was referred to the Immigration Department on 7 May 2014. On 8 May 2014 he lodged a torture claim (processed subsequently as a non-refoulement claim).
2. His claim is based on a land dispute with his aunt and uncle. He alleged that in March 2014 his uncle (“NS”) attacked him on the street. Several days later NS approached the applicant and threatened to kill him. The applicant then fled to Hong Kong.
3. The Director decided against the claims on 11 September 2015. The decision covered BOR 3 risk, persecution risk and torture risk (“Director’s Decision”). The applicant appealed to the Torture Claims Appeal Board. The Board held a hearing on 31 August 2016.
4. By a Further Decision of 30 June 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.
5. The Board was aware of the Further Decision. On 22 September 2017, the Board dismissed the appeals on all applicable grounds (including BOR2 risk) (“Board’s Decision”).
6. The intended judicial review was in respect of the Board’s Decision only. The Form 86 filed by the applicant on 2 November 2017 did not contain any ground for judicial review.
7. In his affirmation dated 2 November 2017, the applicant gave the following grounds for judicial review:
(a) failure on the part of the Director and the Board to properly consider his fear which led to his claim;
(b) failure on the part of the Director and the Board to properly consider the supporting documents produced by the applicant as to the severity of the threats from his aunt and uncle when assessing his claim; and
(c) failure on the part of the Director and the Board to conduct sufficient and independent inquiry into the relevant COI with critical analysis, for being selective in their reliance of such COI, and for failing to give proper explanation or reasons for their conclusion.
8. The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [12] to [16] of the CALL-1 Form of 27 April 2018:
“ 12. The first ground is without any merit as it is clear that both the Director and the Board did take into proper account of the effect of the threats and assault on the applicant by his aunt and uncle over the land dispute, the fact that the Board found his accounts unreliable is a question of credibility of which the Board has also dealt with fairly and properly based on the facts. I do not find any error of law or procedural unfairness in either of their decision arising from this issue.
13. The same can be said about ground (2) when it is also clear that both the Director and the Board did take into account of the documents produced by the applicant which were essentially related to his mother’s court case over the land dispute, as detailed in paragraph 6.33 of the Director’s decision, and which was never an issue before either the Director or the Board as both clearly accepted in their decisions the facts of the land dispute and the court case, and assessed the applicant’s claim accordingly. Again I do not see any merit in this complaint of the applicant.
14. As for ground (3) of improper, inadequate or selective reliance on COI by the Director and the Board, it is not enough for the applicant to simply make these broad and vague statements without providing any particulars or specifics, in the absence of which I am unable to discern anything amiss arising from their reliance of COI in their assessment of the availability of state protection and internal relocation to the applicant, and on the basis of those COI listed and relied on by both of them, they were certainly entitled to arrive at their conclusion as they did in their decisions, and contrary to what the applicant said under this ground, they did give detailed explanation for their reasons and conclusion, and I do not find any merit in this ground of the applicant either.
15. 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, or any failure on their part to apply high standards of fairness in their assessment and consideration of the applicant’s claim.
16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”
9. In the notice of appeal of 11 May 2018 the applicant stated the following as his ground for appeal:
“… the Plaintiff will face hardship if he is to return back...
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