RE MOHAMMED HAFIZUR RAHMAN

CACV 610 /2018

[2019] HKCA 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 610 OF 2018

(ON APPEAL FROM HCAL NO 83 OF 2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 20 December 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 2740, refusing leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 4 January 2018 (“the Board’s Second Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 January 2017 (“the Director’s Second Decision”) rejecting the applicant’s BOR 2 risk[1] claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 22 August 2006 and was permitted to remain as a visitor until 25 August 2006.  He overstayed and was arrested by the police in Hong Kong on 21 March 2008.  He lodged a non-refoulement claim on 1 April 2008. 

3.  The details of the applicant’s claim and his personal background were set out in paragraphs 5-7 of the Director’s decision dated 30 July 2014 (“the Director’s First Decision”), and paragraphs 2-4 and   24-32 of the Board’s decision dated 11 May 2015 (“the Board’s First Decision”).

4.  Briefly stated, the applicant claimed that if he were to return to India, he would be harmed or killed by Sonu Bhai from whom the applicant borrowed money.  The applicant claimed that he borrowed 2 million Indian rupees from Sonu Bhai and gave to his former partner in a garment business, a person named Sarfaraz, for a potential profitable business opportunity in Shenzhen.  Sarfaraz had lost all the money and fled to South Korea.  When the applicant informed Sonu Bhai that he was unable to repay the loan, Sonu Bhai threatened to kill him. 

The Director and the Board’s Decisions

5.  By the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4]. The Director’s Second Decision assessed the BOR 2 risk claim.

6.  The applicant appealed the Director’s Decisions to the Board.

7.  The appeal against the Director’s First Decision was heard on 24 November 2014, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board dismissed the applicant’s claim.  In the Board’s First Decision, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds.  The Board was of the view that the applicant’s claim lacked credibility and that he would not borrow a sum of money of this magnitude and at the rate of interest as he claimed.  The Board simply cannot attach any credence to the version of events from the applicant (see paragraphs 34-52 of the Board’s First Decision).  Thus, the Board dismissed his appeal based on the lack of credibility on the applicant’s account. 

8.  The appeal against the Director’s Second Decision was decided on 4 January 2018 (i.e., the Board’s Second Decision), in which the Board opined that in the absence of any additional documents, it would be unnecessary to hold a hearing and in light of the documents available to it, the Board dismissed the applicant’s appeal against the Director’s Second Decision on his BOR2 risk claim.

The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 17 January 2018 seeking leave to apply for judicial review against the Board’s Second Decision.  In his supporting affirmation filed on the same date, the applicant complained of (1) the lack of legal representation in his appeal before the Board; (2) the lack of legal representation/language assistance for not providing him with any translation of his Non-refoulement Claim Form (“NCF”) to enable him to find out if the interpreter had translated the basis of his claim properly; and (3) lack of hearing in the Board so that he was unable to provide and explain all the new facts to the Board.

10.  The applicant requested a hearing but was absent from the scheduled hearing date.  He later requested to reschedule another hearing date on the ground that he did not receive the notice of hearing.  The Deputy Judge rejected his explanation and refused to reschedule the hearing. The Deputy Judge then proceeded to consider the grounds put forward by the applicant in light of the documents available before him.  

11.  Having considered the documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 15-23 of the Deputy Judge’s Decision:

“15.   For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar [2004] HKCFA 43; (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

16.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

17.   As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without basis.

18.   Regarding his last complaint of the Board not arranging an oral hearing for his appeal so that he could provide additional facts and make his presentation to the Board, as has been held by the Court of Appeal in ST v Betty Kwan [2014] HKCA 309; [2014] 4 HKLRD 277 that there is no absolute entitlement to oral hearing which is ultimately a question of fairness in the circumstances of each case, as Cheung CJHC (as he then was) explained in paragraph 26 of the judgment:

“ …there is no absolute right to an oral hearing. Amongst other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.”

19.   In the present case the applicant had as noted already been able to make full representation of his claim to the Director with legal representation, and also attended an oral hearing in person before the Board during which he was able to make further representation and answered questions from the adjudicator who for the detailed analysis and reasoning set out in paragraphs 34–50 of his decision rejected the applicant’s claim on his credibility, hence in the absence of any further or additional facts or materials presented by him for his claim under BOR 2 risk, the adjudicator was in my judgment perfectly entitled to find it unnecessary to schedule another oral hearing for the applicant’s appeal in respect of his claim under BOR 2 risk, and given the Board’s findings and rejection of the core of his claim as to either his alleged business arrangements with SF or his subsequent loan from SB, I agree with the adjudicator’s view that a further oral hearing would not and could not assist the applicant in making out any claim under BOR 2 risk or advancing his such claim.

20.   As it has been repeatedly emphasized by the Court of Appeal that the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, as judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018]  HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

21.   Further, the fact that it has also been established by the Director in his first decision that the risk of harms from SB is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to other part of India, there is simply no justification affording him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2012] HKCA 502; [2013] 1 HKC 526.

22.   In the premises and having proceeded to consider 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.

23.   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.”

Grounds for appeal

12.  The applicant filed the Notice of Appeal dated 31 December 2018 to appeal against the Deputy Judge’s Decision.  He advanced his grounds of appeal as follows:

“1. The high standard of fairness has not been achieved in my case. The Deputy Judge has erred in ruling that it is fair that the Board did not hold an oral hearing for my BOR 2 appeal. I was not aware of my BOR 2 rights and subsequently I could not have provided additional information as I did not even know what the definition of BOR 2 referred to. There has been no explanation or guidance provided to me. Subsequently due to the failure to reply to the letter my case was dismissed by the Director and also rejected by the Board without an oral hearing. This is procedurally unfair. The Board should not have held the credibility against me and just dismiss of my case once and for all.

2. I therefore seek a reconsideration of my case to be heard by way of an oral hearing with an interpreter arranged.”

13.  In gist, the applicant advanced three grounds of appeal, which were essentially the same as those advanced before the Deputy Judge.  He claimed that the high standard of fairness was not achieved in his case because: (1) the Deputy Judge has erred in ruling that it is fair for the Board to not hold an oral hearing for the applicant’s BOR 2 risk claim; (2) it is procedural unfair for the Board and the Director to dismiss his BOR 2 risk claim without an oral hearing due to his failure to reply to a letter; and (3) the Board should not dismiss his case based on his credibility.

Discussion

14.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

15.  Firstly, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and country of origin materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  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.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

18.  As to the first ground, the Deputy Judge had already explained that there is no merit in the applicant’s claim that there ought to have been an oral hearing for his BOR 2 risk claim, as it is ultimately a question of fairness (paragraph 18 of the Deputy Judge’s Decision).  There is no absolute entitlement to a BOR 2 risk oral hearing. Further, the applicant has not explained what additional or new facts or grounds he would have put before the Board at an oral hearing that could advance his BOR 2 risk claim: Re Riaz Yasmeen [2018] HKCA 576 at [21]-[22].  Therefore, this ground must fail.

19.  In relation to the second and third grounds, these are grounds against the Board and the Director.  As mentioned above, it is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, the applicant failed to identify any error in the Deputy Judge’s Decision.  The grounds advanced by the applicant against the Board and the Director were properly addressed by the Deputy Judge in his reasons.  These are no viable grounds of appeal. 

20.  In his skeleton submissions dated 11 April 2019, the applicant repeated his grounds of appeal.  He further submitted that he was not provided with any legal and language assistance by the Director or the Board even till now.  As rightly pointed out by the Deputy Judge at paragraphs 15-17 of the Deputy Judge’s Decision, there is no absolute right to free legal representation at all stages of the proceedings and the applicant had failed to show that his claim was wrongly interpreted or wrongly understood by the Board.  Thus, these submissions do not take this appeal any further.  

21.  In any event, we have reviewed the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

22.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.