SHEIKH YASMEEN ABDULSATTAR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 198/2019

[2019] HKCA 928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 198 OF 2019

(ON APPEAL FROM HCAL NO 1921 of 2018)

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JUDGMENT

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Hon Toh J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 12 April 2019. By that decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the adjudicator of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.  The applicant is a national of India.  She arrived in Hong Kong on 10 October 2012 with permission to remain for employment as a domestic helper.  After the termination of her employment contract on 22 May 2013, she did not depart from Hong Kong and has overstayed since 6 June 2013.  She was arrested on 15 September 2013 for overstaying and was later convicted of breach of condition of stay in Hong Kong.  On 17 September 2013, she submitted her grounds for non‑removal and she lodged a non‑refoulement claim by way of written representation on 10 April 2014.  Her claim was based on her fear of harm from members of the Shiv Sena party over a debt owed by her late husband.

The Director’s decision

3.  The applicant did not attend the screening interview with the Immigration Officer as she was not feeling well.  She was provided with a list of questions for her to furnish elaboration and clarification of information so that she was not deprived of a reasonable opportunity to establish her claim.

4.  By a Notice of Decision dated 14 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s non‑refoulement claim.  The decision covered torture risk, BOR 2 risk, BOR 3 risk and persecution risk.

5.  The Director considered that the inconsistencies in the applicant’s account of the basis of claim cast doubt on the existence of the dispute between the applicant and her creditors.  The absence or low intensity and frequency of ill‑treatment in the past is indicative of the unlikelihood of future risk of harm.  Besides, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non‑refoulement application was rejected.

The Board’s decision

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 13 July 2018.  The Board found that the applicant’s claims are not credible.  The Board considered that there is not a real risk the applicant would face any of the proscribed forms of harm should she return to India.  Therefore, the appeal was rejected on 7 September 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 13 September 2018 to seek leave to apply for judicial review against the decision of the adjudicator of the Board on the following grounds:

(1)  the adjudicator misdirected herself on the law by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  the adjudicator failed to carry out sufficient research and inquiry into the COI conditions and to have regard to relevant and up‑to‑date COI;

(3)  the adjudicator failed to take into account or to put proper weight on relevant COI.  She cherry‑picked or put weight on irrelevant COI and relied on outdated COI research publications;

(4)  the adjudicator failed to evaluate and make finding of fact as to whether there exists a consistent pattern of gross, flagrant or mass violation of human rights in India;

(5)  the adjudicator failed to analyse and assess whether state protection exists in India and misdirected herself as to the extended meaning of state protection;

(6)  the adjudicator took into account and put weight on irrelevant considerations or based on incorrect or inaccurate facts;

(7)  the adjudicator failed to call for psychological and psychiatric evaluations and reports;

(8)  the adjudicator applied the incorrect standard of proof in her decision; and

(9)  the failure of the assigned duty lawyer resulted in lack of and/or insufficient legal representation.

The judge’s decision

8.  On 12 April 2019, the judge dismissed the application for leave to apply for judicial review for want of prosecution as the applicant was absent at the hearing of her application.

Grounds of appeal

9.  The applicant attached her grounds of appeal to the Notice of Appeal filed on 25 April 2019 which are summarized as follows:

(1)  procedural impropriety in failing to consider the concept of extended state acquiescence;

(2)  procedural impropriety in failing to conduct sufficient independent inquiry into the relevant COI as to the effectiveness of the Indian authorities to protect its citizens in the consideration of her claim;

(3)  procedural impropriety in failing to consider the fact that persons are being killed in the name of religion and political affiliations in India;

(4)  misdirection in law in failing to consider the psychological effects of the threats made against the applicant and the severity of the threats and attacks or to take into account of the evidence of the attacks against her family or the cumulative effect of inactions by the local authorities in the protection of citizens without political affiliation in India;

(5)  irrationality and illegality in failing to give sufficient reasons as to why the applicant was not found to be at risk under any of the grounds;

(6)  there are broad assertions presented by the applicant in assessing the dangerous situations in some parts of India with political/religious persons’ influence; and

(7)  the very grave situation her family is facing in India.

(Although the wording of the grounds of her intended judicial review was different, most of the above grounds of appeal are similar to her previous grounds except grounds (5) and (7).)

10.  In her affirmation in support filed on 25 April 2019, she stated that her life is in grave danger in her motherland and relocation is practically impossible as the fight against terrorism is non‑existent in light of new law.

11.  In her written submissions, the applicant submitted that she has political problem in her country and her enemy wants to kill her.  She further submitted that the Director refused her claim without proper screening and the adjudicator gave her only one and a half hours which was not enough for her to tell her problem.  She also criticized the judge for not finding any legal error about the above faults.  In addition, she complained that it was impossible for her to understand the purpose of the bundle provided by the Director which contains documents in English.

Analysis

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at § 14.

13.  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 Country of Origin Information (“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.

14.  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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  In respect of new arguments, the Court of Appeal will not generally entertain fact‑and‑evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

16.  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.

17.  The applicant failed to explain why she did not attend the hearing before the judge on 12 April 2019.  She complained that the judge failed to find any legal error in decisions of the Director and of the adjudicator.

18.  According to Re Moshsin Ali [2018] HKCA 549, the applicant cannot seek judicial review against the Director’s decision once an appeal to the Board is pursued by a claimant as the decision of the Board will supersede the decision of the immigration officer.

19.  In the present case, the adjudicator held that the applicant lacked credibility and was inconsistent in many areas of her evidence.  The adjudicator gave detailed explanation in paragraphs 38 to 58 of her decision.  Her decision was well founded and the applicant failed to give viable arguments or evidence in support which could refute the adjudicator’s findings.

20.  The applicant failed to show that the judge was wrong in dismissing her leave application, the appeal should be dismissed.

Disposition

21.  As there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review, we hereby dismiss this appeal.