RE AZHARUDDIN SK

CACV 29/2020

[2020] HKCA 711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 29 OF 2020

(ON APPEAL FROM HCAL 1322/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 14 January 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 28 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 October 2017 rejecting the applicant’s non-refoulement claim.

2.  On 20 January 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  He arrived in Hong Kong on 14 January 2015 and was permitted to stay as a visitor until 28 January 2015. He overstayed and was arrested by police on 3 February 2015.  The applicant lodged a non-refoulement claim on 5 February 2015. 

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his creditor Arjit due to his failure to repay his debt.  The applicant believed that Arjit was wealthy and powerful due to his ties with the All India Trinamool Congress[1] and the police.  The factual background was succinctly summarized by the Judge in [10] – [12] of the Form CALL-1 ([2020] HKCFI 165).

5.  By a notice of decision dated 31 October 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[2], persecution risk[3], torture risk[4], and BOR 2 risk[5].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 22 June 2018, at which the applicant was legally represented.  During that hearing he was interviewed by the Board but he refused to answer the Board’s questions or to give oral evidence, instead relying solely on the documents in the hearing bundle.  The Board found that his claims are not credible.  The Board dismissed the applicant’s appeal on 28 June 2018 on all the applicable grounds.

Decision of the court below

7.  On 9 July 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his Form 86, he raised the following grounds for seeking relief, as set out at [16] of the Judge’s decision:

“ (1) the Director had failed to give proper weight to state acquiescence in his case as there was collusion between the police and the high-up political circles;

(2) the Director was unfair because he selected the Country of Origin Information (“COI”) in accordance with his pre-conceived conclusion and he did not give proper weight to the information in support of his case;

(3) the Director had failed to consider that corruption is serious in India and the administration of the government is incompetent;

(4) the Director had failed to maintain high standard of fairness;

(5) the Adjudicator had not made sufficient enquiry before making decision;

(6) it was unreasonable for the Adjudicator to ask the applicant to adduce evidence to prove his case because the applicant was being detained; and

(7) the applicant was not given sufficient chance to adduce the evidence.”

8.  The Judge held a hearing on 4 July 2019 at which the applicant attended in person.  On 14 January 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [17] to [29] of the Form CALL-1 [2020] HKCFI 165.  In essence, the Judge followed the decision of this Court in Re: Moshsin Ali [2018] HKCA 549 and held that the Director’s decision had been overtaken by the decision of the Board and there were no exceptional circumstances permitting judicial review against the Director’s decision.  In respect of the challenge against the Board’s decision, the Judge’s reasons for rejecting the same was set out at [22] to [28]:

“22. The applicant appeared before me and he confirmed that he had not given evidence before the Board. But he considered that the Adjudicator was fair and he had no complaint against her.

23. In the Board’s Decision, the Adjudicator has recorded that she had advised the applicant to be cooperative with her and she would like him to give evidence to clarify some issues which she had concern. He was legally represented and his legal advisor had also taken time to give him advice. See paragraph 7. Despite legal advice having been obtained, the applicant maintained his stance of not giving evidence. In the circumstances, the Board considered his evidence which he had given to the Director at the screening stage. She found that his evidence was inconsistent and difficult to accept. The Board finally found that it was not satisfied that the appellant had established any of the facts he had asserted and it was not satisfied that there was a real risk that he would face any of the proscribed forms of harm if he returned to India [63].

24. The Board had drawn adverse inference from the fact that the applicant had refused to give evidence [62]. In my view, the Board was entitled to do so. In Li Defan & Another v HKSAR (2001) 5 HKCFAR 320 at §27, in which Lord Hoffmann NPJ cited the High Court of Australia: Weissensteiner v. The Queen (1993) 178 CLR 217:

‘ …it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it …’

25. The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13:

‘ Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers …’

26. At §14 of the same judgment, the Court of Appeal further said:

‘ Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

27. It is quite obvious that the Board rejected the applicant’s factual evidence. As such, his application has no factual basis in support of his claim.

28. Those grounds above have no relevance to the reasons for the Board’s refusal of his appeal. It is simple not permissible for him to say that the Adjudicator did not allow him time to arrange for relevant evidence to be available since he did not identify the evidence and he elected not to give evidence at the hearing himself.”

Appeal to this Court

9.  On 20 January 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which he substantially reiterated the grounds in his judicial review above as grounds of appeal. 

10.  Pursuant to this Court’s directions of 13 June 2020, the applicant duly lodged his written submissions on appeal on 22 June 2020. Those submissions consist largely of general statements of law without identifying how they specifically relate to or apply in this case.

11.  At paragraph 5 of his submissions, the applicant made a general assertion that the Adjudicator acted in a procedurally unfair manner in dealing with the Appellant’s application without properly assess the credibility of the Appellant.  However, the applicant did not provide any details or particulars as to how the Board failed to properly assess his credibility, let alone any particulars in support of his other arguments.

Legal principles

12.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  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 issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court 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 stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

13.  As mentioned earlier, the applicant did not in his Notice of Appeal or his submissions identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.  In our judgment, the grounds advanced by the applicant do not give rise any basis for suggesting any error on the part of the Judge.

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the applicant’s credibility.  Such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

16.  The judge was correct in holding that the Director’s decision has been superseded by the Board’s decision and therefore not amenable to judicial review: see Re: Moshsin Ali [2018] HKCA 549.

17.  The judge was also correct in holding that in the circumstances (when the applicant had repeatedly refused to answer questions from his own lawyer despite the adjudicator granting time to let the lawyer conferred with him), the adjudicator was entitled to take account of his failure in assessing the credibility of his written statements in light of the concerns over the inherent difficulties in the same[6].

18.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge was plainly right in refusing leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

19.  Due to the flimsy nature of the evidence of the applicant, the applicant has no evidential basis to support any claim of state acquiescence. As discussed in TK v Michael Jenkins HCAL 126/2010, AM v Director of Immigration [2014] 1 HKC 416 and Re Esmerez Maria Nieva Gelito [2018] HKCA 611, the concept of state acquiescence is not engaged when there is no evidence the government knows or have reasonable grounds to believe that acts of torture or ill-treatment were committed by non-state actors against the applicant.

20.  The applicant was represented by lawyer at the hearing before the Board.  There is no arguable basis for suggesting that there was any procedural unfairness in the process.

21.  For these reasons, we dismiss the appeal.