HOSSAIN AEJAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 250/2023, [2023] HKCA 999

On Appeal From [2022] HKCFI 2629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 250 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1186 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge To (“Judge”) dated 26 August 2022 dismissing the applicant’s application for leave to apply for judicial review.  The intended judicial review was sought against the decision of the Torture Claims Appeal Board (“Board”) dated 2 June 2020. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 6 February 2018 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of India, born in 1965.  He last arrived in Hong Kong on 17 January 2017 and was granted permission to remain as a visitor until 4 February 2017.  He did not, however, depart, and on 16 February 2017, he surrendered to the Immigration Department for having overstayed, for which he was convicted and sentenced to 4 days’ imprisonment suspended for 12 months on 28 March 2017.  On 5 April 2017, a removal order was issued against the applicant.  He lodged a non-refoulement claim by written representation dated 19 April 2017.  The basis of his claim was that if he returned to India, he would be ill-treated or even killed by his business partners and clients because he failed to set up a business in Hong Kong, with which he was tasked, resulting in losses and expenses on their investment.  The details of his claim are set out in paragraphs 6.1 to 6.40 of the Director’s decision dated 6 February 2018.

3.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, torture risk,[1] BOR 3 risk,[2] persecution risk,[3] and BOR 2 risk.[4]  By notice of decision dated 6 February 2018, the Director rejected the applicant’s claim for non-refoulement protection. 

4.  The applicant appealed to the Board against the decision of the Director.  The Board held a hearing on 16 March 2020, at which the applicant gave oral testimony and answered the Board’s questions.  In the end the Board concluded that the applicant’s claims and his evidence had “no credibility whatsoever”.  He was unable to provide any documentation in relation to his relationship with the men he claimed were his business partners, and offered no coherent response to the Board’s questions about the lack of documentation.  The Board had serious doubts about the genuineness of the extremely limited documentation that had been provided by the applicant in relation to the loans he said he was trying to raise from banks in Hong Kong.  The Board found that the applicant’s claimed fear of his former business partners was “lacking in all credibility” and “plainly lacking any plausibility at all”.  The Board concluded that it was not satisfied that the applicant had established any grounds showing that he would face a real risk of ill-treatment if he were to return to India.  Accordingly, in its written decision dated 2 June 2020, the Board concluded that the applicant’s claim failed in relation to all applicable grounds and dismissed his appeal and affirmed the Director’s decision.

The Judge’s decisions in the court below

5.  On 15 June 2020, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review, naming “USM” as the proposed respondent, and also filed an affirmation simply exhibiting a copy of the Board’s written decision.  No ground for judicial review was set out in either the Form 86 or the affirmation.

6.  The Judge held a hearing on 26 July 2022. The applicant attended, and clarified that he wished to seek judicial review of the Board’s decision.  He did not, however, advance any specific grounds for judicial review, other than his disagreement with the Board’s findings.  On 26 August 2022 the Judge issued his decision in writing, refusing to grant leave to apply for judicial review.  The reasons were set out at [19] – [26] of the Form CALL-1 as follows:

“ 19. The Applicant did not put forward any grounds of aplication in his Form 86 or supporting affirmation. At the hearing, the Decision of the Board was explained to him through the interpreter. Despite having been explained that he could challenge the Decision on the basis of error of law, procedural unfairness and irrationality, he was unable to advance any specific grounds of application other than his disagreement with the Board’s finding of fact.

20. He disputed the Board’s finding that he did not have a bank account. He said his company had bank accounts with Bank of China, Hang Seng Bank and Industrial and Commercial Bank of China. The Board asked him if he had any accounts showing the operation of his business from 2012 until the end of 2016, he said he had no as he had not actually done any business because he had not yet obtained any bank loans. The Board specifically asked him if he could provide evidence that Innertech had a bank account. He said he could not but that he had a bank card for his personal account. That was his evidence before the Board.[5] Thus, on the basis of his evidence, the Board found the Applicant could not produce any accounts showing the operation of his business from 2012 until the end of 2016. That finding was based on the Applicant’s evidence and could not be criticised at all.

21. The Applicant disputed the Board’s finding that he did not produce any documents. That was not the finding of the Board. The Board had listed the documents he produced.[6] It discussed those documents with the Applicant. What the Board found was that the documents did not support his case, not that he did not produce any documents.

22. He also disputed the Board’s finding that it would be safe for him to return to India. He said that his business partners are strong, influential and will harm him. What the Board found was the Applicant’s evidence was incredible and hence he failed to prove the factual basis in support of his case. In short, the Applicant failed to prove his life would be at risk if returned to India.

23. Not only are these disputes put on the wrong basis, they are challenges against the finding of fact by the Board which is not permissible in a judicial review. In the absence of proper grounds of review, the court could only focus on the usual challenges in a judicial review such as error of law, procedural unfairness and irrationality.

24. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims.

25. The Applicant’s claims are founded on his fear that he will be harmed or killed by his business partners because they had funded his business expenses in Hong Kong for four years in anticipation of substantial profits but his business failed to generate any profit. The Board had carefully weighed the evidence and assessed the Applicant’s credibility. It found him incredible and his evidence inherently improbable. As the Applicant bore the burden of proof of his claims, such a finding was fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM.

26. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  There were no such vitiating elements in the Decision.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

7.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but sent a letter dated 31 August 2022 to the court to apply for an extension of time of 45 days, and subsequently sent to the court an affirmation and an un-filed summons under cover of a letter dated 24 October 2022 to seek an extension of time to appeal against the decision of the Judge.  It is unnecessary to set out the explanations given by the applicant because the Judge was prepared to condone the delay and focus principally on the prospects of success of the intended appeal, as set out in the Judge’s written decision dated 12 January 2023.  In the end, the Judge refused to extend time because the intended appeal had in his view no prospect of success at all.

The renewed application before this Court

8.  By summons filed on 13 July 2023, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  The accompanying affirmation exhibited (i) a 15-page letter which had been included in the document sent to the court below in October 2022; (ii) a 3-page letter addressed to the Court of Appeal; (iii) a 13-page document setting out certain incidents in the Tai Tam Gap Correctional Institution from 26 July 2022 to 21 September 2022; and (iv) three letters from Bank of China (Hong Kong), Industrial and Commercial Bank of China, and Hang Seng Bank respectively.

9.  The applicant did not lodge any further written submissions in connection with his present application to this court.

10.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

11.  Taking the same approach as the Judge, we shall focus on the merits of the intended appeal in deciding whether the applicant should be granted an extension of time.

12.  The document referred to in paragraph 8(i) above set out certain incidents that happened in Hong Kong in relation to the Kowloon Mosque at 105 Nathan Road, which are not relevant to the applicant’s non-refoulement claim or the merits of his intended application for judicial review.  The document referred to in paragraph 8(ii) above is a plea to be released from detention, which is not a matter within the jurisdiction of this court in this application for extension of time to appeal.  The document referred to in paragraph 8(iii) above set out alleged incidents in the Correctional Institution in which the applicant has been detained.  They are again not relevant to his non-refoulement claim, his intended application for judicial review of the Board’s decision, or his intended appeal against the Judge’s decision.  In the letters referred to in paragraph 8(iv) above, Bank of China stated that it would only retain records of documents for 7 years and could not therefore provide the applicant with the statements of his company’s account; Industrial and Commercial Bank of China provided a statement dated 30 September 2022 showing that Innertech International Ltd (presumably the applicant’s company in Hong Kong) had nil balance in its accounts; and Hang Seng Bank stated that Innertech International Ltd’s account was closed on 24 February 2014 and no statements could be provided as documents were only conserved for 7 years.  None of these documents in our view provides any ground of appeal against the Judge’s decision.

13.  It is necessary for the applicant to understand that judicial review is not a further avenue for appeal from the Board.  Under the law, the Director and the Board are the decision-makers on the merits of his non-refoulement claim.  The court’s jurisdiction in judicial review is supervisory in relation to compliance with the law.  An appeal to the Court of Appeal is not a further opportunity to re-argue the non-refoulement claim.  It is incumbent upon an appellant to identify and establish proper grounds of appeal showing reviewable errors in the judge’s decision.

14.  In the present case, the Board found the applicant’s evidence incredible and did not accept his claims in relation to the risks from his business partners.  This is a conclusion that the Board, as the primary decision-maker, was entitled to reach, for the detailed reasons it gave in its decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, and irrationality in the ultimate decision.  The applicant has failed to establish any such public law ground.

15.  The applicant has also failed to show how the Judge has erred in refusing to grant leave for judicial review.  He has wholly failed to put forward any viable ground of appeal against the Judge’s decision.  Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review. 

16.  We do not see any prospect of success at all in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The applicant’s summons is accordingly dismissed.

[1]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to the 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.

[4]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5]  Paragraph 22 of the Decision

[6]  Paragraph 17 of the Decision