RE AHMED IBRAR

CACV289/2019

[2019] HKCA 1088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 289 OF 2019

(ON APPEAL FROM HCAL 898 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Ahmed Ibrar, against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 14 June 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 16 May 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 31 August 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of India now aged about 32, is a fear of being harmed or even killed by (1) his former business partners and employers, Mohammed Imran (“Imran”) and Minazz Uddin (nicknamed Sunny) (“Sunny”) to whom the applicant had not repaid a debt of Indian Rupees (Rs) 3.5 million, and (2) some 4 to 5 Indian men of unknown names (“couriers”) who was each owed Rs 3,000 by the applicant.[1]  

3.  Such alleged fear is said to arise out of the following circumstances:

(1)  Both Imran and Sunny came from a wealthy background with connections/affiliations with influential people and even gangsters because Sunny’s father is involved in many illegal businesses in various states of India.

(2)  The applicant himself had worked as a salesman in Kidderpore, Kolkata for about 10 years.

(3)  In 2007, he entered into a trading partnership with Imran and Sunny, each having invested approximately Rs 1 million in the business. 

(4)  In 2008, the applicant came to Hong Kong with US$9,000 entrusted to him by Imran and Sunny to arrange and pay for the shipment of certain goods worth about Rs 3.5 million back to India. However, before he had got round to doing so, the applicant lost the US$9,000 after a drunken night at Lan Kwai Fong, Central.

(5)  Instead of telling Imran and Sunny about the loss, the applicant overstayed in Hong Kong and made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 12 December 2008.

(6)  In late 2009, he eventually confessed the loss to Sunny, who convinced the applicant that he could return to India and repay the loss by instalments. The applicant withdrew his torture claim on 30 November 2009 and was repatriated back to India on 14 December 2009.

(7)  After the applicant’s return, Sunny gave him the choice between selling his house and working for Sunny and Imran but with his monthly salary deducted until the said sums of US$9,000 and Rs 3.5 million were fully repaid. The applicant agreed to the latter.

(8)  Shortly after he started to work for Imran and Sunny, the applicant broke a LCD television which he purchased for their business in Bangkok. As he could only settle half of the damage (being Rs 20,000), he became indebted to Imran and Sunny for another Rs 20,000.

(9)  The applicant’s employment with Imran and Sunny led to great financial hardship for him as they deducted his pay every month so that he was left with no money to live.

(10)  One day in around 2011, the applicant asked Sunny if he could be allowed some of his salary to pay for his living expenses.  Sunny was infuriated by the request and punched the applicant on his lower lip.

(11)  The applicant continued to work for Imran and Sunny.  However, what then followed for him were repeated physical abuses by Sunny and his men.

(12)  One day in 2012, Sunny was angered by the applicant’s refusal to make a business trip to Bangkok due to a clashing wedding party of a relative. Sunny, together with 6 other men, hit the applicant with either their bare hands or baseball bats. The applicant eventually had to go to Bangkok as directed to purchase goods for Imran and Sunny.

(13)  Then, one day in around 2013, Sunny, accompanied by 8 unknown men, suddenly demanded the applicant to settle the whole debt he owed to him and Imran, failing which they would sell his kidneys. The unknown men then beat the applicant up with metal rods, hockey sticks and leather belts. They only stopped upon intervention by some passers-by.

(14)  Sometime in 2003, Sunny and Imran arranged for the applicant to go to Bangkok with the couriers to carry some goods back to India. The couriers, whose plane tickets were arranged and paid for by Imran and Sunny, had to pay Rs 3,000 each for the trip.  The applicant collected the fee from them and paid the money over to Sunny. The trip was later cancelled. Sunny however refused to repay the money collected from the couriers, saying that it was interest payment by the applicant to him and Imran.  The couriers came after the applicant for their money back.  They made verbal threats against the applicant but did not physically hurt him.

(15)  One day in late 2013, Sunny went to the applicant’s home with 4 to 5 unknown men to demand for full repayment. Sunny told the applicant that he could kill himself as he would not be given any more time to pay up. The applicant was again beaten up with wooden sticks and leather belts.

(16)  The applicant tried borrowing from friends and relatives but to no avail.

(17)  In early January 2014, Sunny assaulted the applicant for stealing money from him when in fact a customer had short changed the applicant for Rs 50,000. Sunny threatened to kill the applicant or cut his legs off if he failed to repay everything within 3 days.

(18)  The applicant could not take the great financial pressure and the physical abuses anymore. In January 2014, he last left India for Hong Kong.

(19)  The applicant had not reported any of the assaults by Sunny who had warned the applicant against doing so. Nor did the applicant think the police which was corrupt would help him. 

(20)  As a result of the beatings, the applicant sustained mostly bruises and swellings, which he treated just with some ointments he got from a pharmacy.

(21)  After his departure, the applicant heard that Imran and Sunny had gone to his home to look for him.

Entry into Hong Kong and lodgment of NRF Claim

4.  On 11 January 2014, he entered into Hong Kong illegally.[2] He was arrested by police for illegally remaining here on 14 March 2014.

5.  The applicant lodged the NRF Claim by written representation on 17 March 2014 and submitted his Non-refoulement Claim Form on 11 July 2017. 

Director’s Decision

6.  In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 27 July 2017 with the applicant who then had legal assistance and representation from the Duty Lawyer Service.

7.  The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection, i.e. torture risk[3], persecution risk[4], “BOR 2” risk[5] and “BOR 3” risk[6].

(1)  The low intensity and frequency of the past ill-treatment from the people allegedly feared by the applicant indicates that their real intention was to obtain settlement from the applicant and not to harm or kill him and thus a low future risk of harm upon the applicant’s return to India.

(2)  The applicant chose not to seek help from the police or any other authorities in India. There is objective country of origin information (COI) showing that reforms have been and are on-going in India. The Indian government has taken practical steps to improve the effectiveness, and monitor the conduct, of the Indian police force, which could provide protection to its citizens. There is also a functioning judiciary and legal aid system in India. The availability of state protection would further lower or even negate the level of the perceived risk.

(3)  Internal relocation alternatives (e.g. to New Delhi or Mumbai), which further reduce any risk of harm, are available in a geographically large and populous country like India. And it is not unduly harsh or unreasonable for the applicant, an abled-bodied adult of prime age and with 8 years of education and more than 10 years of working and business experience to relocate. There is no evidence to suggest that the people feared by the applicant would and could find him all over India.

Appeal to Board and Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 11 September 2017.

9.  After a rehearing on 25 January 2018, at which the applicant testified and answered questions by the Board through a Hindi interpreter, the Board dismissed the applicant’s appeal on all applicable grounds for non-refoulement protection on 16 May 2018.

10.  The Board gave the applicant the benefit of the doubt and accepted the account of events that he gave at the hearing, the core aspects of which were “generally detailed” and “mostly consistent” with the past oral and written accounts. On the basis of the applicant’s evidence, the Board accepted that from late 2009 to early 2014, the applicant was abused and threatened on various occasions, and physically assaulted three times, by Imran and Sunny and their associates. The Board also accepted that at the time of his departure from India, the applicant still owed Imran and Sunny approximately Rs 3.5 million and each of the couriers Rs 3,000. 

11.  However, the harm feared by the Applicant was firstly inflicted by individuals acting in a personal capacity in the course of disputes of a private nature, without any involvement of any public officials or state acquiescence. The Board therefore could not find any substantial ground to believe that there is a real risk the applicant would be subjected to torture, as defined in s 37U(1) of the IO, if refouled. The NRF Claim on the ground of torture risk thus fails.

12.  Secondly, regarding “BOR 3” risk, although there is a small real risk that the applicant would suffer mistreatment that would constitute CIDTP if he should return to his home area in the reasonably foreseeable future, the Board found that there would be appropriate state protection and internal relocation options (e.g. to Mumbai, Bangalore or Delhi) available to the applicant to avoid such risk. Hence, the NRF Claim premised upon “BOR 3” risk also fails.

13.  Thirdly, the applicant has not shown any persecution risk as Imran, Sunny, their associates and the couriers, in threatening and/or abusing the applicant, were not motivated by reason of the applicant’s race, religion, nationality, political opinion or membership of a particular social group. 

14.  Fourthly and lastly, the Board ruled out any “BOR 2” risk as the applicant has not been charged with any criminal offence in India so that he would not be subjected to the death penalty or be otherwise arbitrarily deprived of his life.

Application for leave for judicial review and Judge’s Decision

15.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 898/2018 on 23 May 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision.  By the Form 86 and the supporting affirmation filed on the same date, the applicant sought leave for judicial review on the general grounds that the Board had:

(1)   unlawfully fettered its discretion by refusing his appeal on the ground that “they did not satisfy the requirement”;

(2)   acted in a procedurally unfair manner in dealing such appeal and

(3)   been unreasonable or irrational in the public law sense or guilty of procedural errors or unfairness; and

(4)   failed to meet greater care and duty owed to a self-represented claimant.

16.  The applicant also more specifically complained that:

(1)  The hearing bundle was provided to him just about 6 days before the hearing with 2 of those days falling on the weekend. Such bundle was further in English without translation, which he had no means of procuring himself. Due to his lack of understanding of what would happen at the hearing, he was confused.

(2)  The Board significantly relied upon unofficial or hearsay sources of news and outdated cases, which resulted in the groundless speculation that the applicant could safely return to India.

17.  After hearing the application for leave for judicial review in open court on 4 September 2018 at which the applicant was present and was assisted by a Hindi interpreter, the Judge refused leave. His reasons can be found in [33]-[45] of the Form CALL-1 dated 13 June 2019, [2019] HKCFI 1407, as follows (omitting footnotes):

“33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’ Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising 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.”

35. The Applicant complained there was a lack of legal representation after the Director's decision dated 31 August 2017.

36. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

37. The Applicant raised his language problem. In the current application, the Applicant was helped by his present wife and a friend to prepare Form 86 and the affirmation. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

38. The Applicant complained he received the appeal bundle only several days before the Board hearing.

39. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

40. The Applicant said he received appeal bundle on 18 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time.

41. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

42. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

43. The Applicant said he answered all the questions honestly in the Board hearing. That would mean he knew well what was asked and how to answer. He was not confused.

44. There was no evidence that the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

45. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

Appeal to Court of Appeal and grounds of appeal

18.  By a notice of appeal filed herein on 27 June 2019, the applicant appealed against the refusal of leave for judicial review on 2 grounds:

(1)  that he “will face hardship if he is to return back to his home country” (“Ground 1”); and

(2)  that “the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.  They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (“Ground 2”)

19.  In his skeleton submission dated 13 August 2019, the applicant referred to ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the well known propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim. However, the applicant did not suggest whether and, if so, how the high standards of fairness have not been met in the processing of his claim.

20.  The applicant appeared in person at the hearing of the appeal on 23 September 2019. In seeking to further support his appeal, he raised for the first time the following 3 new factual matters:

(1)  There is hostility between the Bharatiya Janata Party (“BJP”) and the Muslim population in India. His creditors belong to the BJP which had called him, through someone, that if he should return to India, they would take out his kidneys and sell them as well as cutting off his limbs.

(2)  He owed Imran and Sunny another sum of US$3,000 which was given by Sunny to him to be used as “show money”, if required, when the applicant passed through customs on one of his overseas business trips. The applicant repaid the money to Sunny’s brother but Sunny claimed not to have received it.

(3)  The couriers had also assaulted him once or twice (which is inconsistent with what he had told the Director and the Board).

Court of First Instance’s role in judicial review in non-refoulement claim

21.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

22.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[8]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

23.  Applying these principles, first, as summarised in [11] to [14] above, the Board (1) ruled out the existence of torture risk, persecution risk and “BOR 2” risk and further (2) dismissed the appeal against the Director’s rejection of the NRF Claim based on “BOR 3” risk because there would be appropriate state protection and internal relocation options (e.g. to Mumbai, Bangalore or Delhi) available to the applicant in India to avoid the real but small risk of CIDTP that the Board could not comfortably ignore.

24.  The applicant’s bare assertion under Ground 1 that he will face hardship if he is repatriated to India goes against the said findings by the Board. The question whether the applicant would be at risk if refouled is a question of fact within the province of the Board (after the Director): see [21] above. The Board heard the applicant. It provided detailed reasons for its said findings in [50]-[81] of its decision. Such reasons cannot be faulted. It can be seen from [15] to [16] above that the applicant has not, by the proposed grounds for judicial review raised before the Judge, articulated any errors of law, procedural unfairness or irrationality on the part of the Board in coming to such adverse findings against him. Nor has he done so before this court.  Ground 1 is devoid of merit.

25.  Ground 2 targets the Board. As explained in [22] above, in hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is the judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim. The applicant has not, in the notice of appeal or written submission before us, stated in any meaningful way how the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in not granting leave for judicial review of the Board’s Decision. Nor can we discern any.

26.  Even insofar as the Board’s Decision is concerned, Ground 2 has not particularised the alleged unrecognised or hearsay source of news, outdated cases or incredible source of information that the Board is said to have referred to or relied on. Nor has the applicant alluded to any particular part of the Board’s Decision that is allegedly speculative or groundless as a result of the Board having acted on such news, cases or information.  Ground 2 is likewise unmeritorious.

27.  As for the new matters raised by the applicant at the hearing before us, leaving aside the absence of reason why they could not have been brought up before the Board, we do not think these new claims add to the applicant’s appeal at all. As an appellate court, we have already proceeded on the basis of the favourable findings made by the Board namely, that from late 2009 to early 2014, the applicant was abused, threatened and assaulted by Imran and Sunny and their men and that the applicant fled India in a state of indebtedness to Imran, Sunny and the couriers.

Disposition

28.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

[1] The applicant initially was also allegedly in fear of his ex-wide’s family, particularly her uncle (“Raja”) who wanted the applicant and his ex-wife, who had eloped to get married in the first place, to divorce. Before he last left India, the applicant had an argument with Raja after Raja had learnt of the applicant’s monetary dispute with Imran and Sunny.  The argument ended in Raja punching the applicant in the face.  Then, in 2016, after the applicant had lodged the NRF Claim in Hong Kong but while it was still pending, the applicant’s ex-wife, with whom he had not enjoyed a cordial relationship for some years due to his financial problems, divorced the applicant.  The applicant has since re-married an Indonesian lady in Hong Kong.  That being the case, the perceived risk from Raja or other members of the applicant’s ex-wife’s family should cease to exist.

[2] He sneaked past the immigration counters at the Hong Kong International Airport.

[3] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) (“IO”) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[4] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[5] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).

[6] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) covered by article 3 of s 8 of the HKBORO.

[7] The correct citation should be ST v Betty Kwan.

[8] [1954] 1 WLR 1489.