RE HOSSAIN MOHAMMAD SAJID

CACV 94/2022

[2022] HKCA 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 94 OF 2022

(ON APPEAL FROM HCAL NO 292 OF 2019)

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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 appeal against the decision of Deputy High Court Judge To (“Judge”)  on 15 February 2022[1] refusing 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 (“Board”)  dated 28 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 26 March 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is an Indian national.  He last arrived in Hong Kong on 17 September 2016 and was permitted to remain as a visitor until 1 October 2016.  He did not depart, and has overstayed.  He surrendered to the Immigration Department on 3 October 2016 and attempted to lodge a non-refoulement claim at that time.  He raised his current non-refoulement claim on 5 December 2016.

3.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by a gangster, Fayaz Khan, with whom he had business dealings, and by a creditor, Mohammed Adil due to his inability to pay monies owed to Khan and Adil, and because he belonged to the Communist Party of India (Marxist)  whereas Khan belonged to the Trinamool Congress (“TMC”).  The applicant also feared that he would be arrested by the Indian police due to a false accusation by Khan alleging that the applicant had murdered a TMC member.  The factual background was summarized at [22] to [23] of the Board’s decision.

4.  By notice of decision dated 26 March 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 29 October 2018, during which the applicant gave oral testimony and answered questions from the Board.  The Board found that the applicant was evasive in his responses to many of the Board’s questions, and that his account was vague and lacking in particulars despite repeated requests for details and clarification. Although he was given opportunities to provide the relevant details and to explain his account, the applicant either could not or would not do so.  In the Board’s view, this damaged his credibility.

6.  Further, there were significant inconsistencies between the applicant’s evidence in his non-refoulement claim form and his oral evidence at the hearing.  Such inconsistencies included significant discrepancies as to the amount of money owed to Khan, whether he even borrowed money from Adil, or whether Khan ever set fire to the applicant’s family’s house.

7.  As a result of the applicant’s evasive responses and the vagueness and inconsistencies in his evidence, the Board on the whole did not find him to be telling the truth.  In any event, the Board found that any risk of harm was confined to a local area and that internal relocation was viable.

8.  Thus the Board found that there was no real risk of harm in the event of refoulement, and in its decision dated 28 September 2018 dismissed the applicant’s appeal in respect of all the applicable grounds.

Decision of the court below

9.  On 31 January 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his Form 86 and his supporting affirmation he raised a number grounds for judicial review, which the Judge summarized at [23] – [26] of the Form CALL-1 as follows:

“ 23. The Applicant advanced the following four grounds in his Notice of Application for Leave to Apply for Judicial Review (Form 86):

(1)  the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

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

24. Though not listed as a ground, the Applicant mentioned in the Form 86 under “Background of the Applicant” that “he was not given an opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions”⁶. He also complained that the Board has significantly relied on news which is not officially recognized or is hearsay, and cases which are out-dated, resulting in the Board making groundless speculations that it was safe for him to return to India⁷. The Court understood that by ‘news’ and ‘cases’ the Applicant meant COI mentioned by the Board in the Decision. The Court treated his first complaint as his elaboration of his second ground, ie procedural unfairness; and his second complaint as his fifth ground, ie erroneous reliance on COI.

25. There are two main thrusts in the Applicant’s supporting affirmation filed on the same day. First, he complained about lack of language assistance and legal representation⁸. Second, he complained about procedural unfairness in that the hearing bundle which was in English was only given to him six days before the hearing with an intervening weekend of two days⁹. He also repeated the Board’s erroneous reliance on COI mentioned in the above paragraph. The Court treated his complaint about lack of language assistance and legal assistance as the sixth ground and his complaint about late delivery of the hearing bundle as elaboration on his second ground, ie procedural unfairness.

26.  Thus, altogether the Applicant has advanced six grounds for his application for leave to apply for judicial review.  It would be convenient to consider the sixth ground first followed by the second ground and then the other grounds in numerical order.”

10.  Following a hearing on 26 January 2022 at which the applicant appeared before the Judge, on 15 February 2022 the Judge issued his decision refusing to grant leave for judicial review.  The reasons for the refusal were set out at [28] – [43] of the Form CALL-1.  In summary, the Judge considered that there was no substance to Ground (6)  (i.e. lack of language and legal assistance)  mainly because the applicant was legally represented and provided with language assistance on his claim before the Director, and an interpreter was available to assist at the Board hearing.  Thus, the Judge considered that the applicant suffered no prejudice from the lack of legal representation before the Board or from the level of language assistance provided.

11.  As for Ground (2), the applicant did not provide any particulars.  The only potential unfairness which the Judge could identify (other than lack of language and legal assistance)  in the manner in which the appeal before the Board was conducted was that the hearing bundle was provided to the applicant only six days before the hearing. However, because the documents in that hearing bundle were documents that the applicant had previously received with which he would be familiar, there was no prejudice to the applicant.

12.  The Judge considered that Ground (1)  was not a valid ground, because if the applicant did not satisfy the requirements for non-refoulement protection, the Board had no discretion to exercise but to dismiss the appeal against the rejection of his claim.  The Judge concluded that there were no errors of law, procedural unfairness or irrationality in the Board’s decision.

13.  The Judge considered that Grounds (3)  to (5)  were without merit, for reasons set out at [39] to [43] of the Form CALL-1 as follows:

“ Ground (3)  – unreasonableness and irrationality

39. The Applicant said that the basis of his allegation under this ground is that the Decision did not meet his expectation. His complaint could only be treated as an overall or general complaint of irrationality and unreasonableness in the Board’s finding. This ground is therefore a complaint against the finding of fact by the Board. As mentioned above, the function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. In an application for judicial review, the Court will only scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality.

40. 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; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant an untruthful witness and his factual case unbelievable. It was on that basis that the Board found the Applicant failed to prove the factual basis to support his claims for non-refoulement protection under any of the four applicable grounds. 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, unreasonableness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness in the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault.

Ground (4)  – Breach of greater care and duty owed to a self-represented claimant

41. The Applicant did not particularise the duty and the breach. In the light of the conclusion reached in respect of the other grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.

Ground (5)  - Erroneous reliance on COI

42. The Applicant complained that by reason of its reliance on outdated COI which is not officially recognized or is hearsay, the Board made groundless speculations that it is safe for him to return to Bangladesh. The Board did rely on COI in reaching its Decision but it is not known which COI the Board relied on. Presumably, it relied on those presented to it in the hearing bundle by the Director. The COI are all from official, authoritative and credible sources, including Country Report on Human Rights Practices for 2016: India published by the United States Department of State; Country Information and Guidance – India: Background Information, including actors of protection, and internal relocation (2015) and Country Policy and Information Note – India: Prison conditions (2016) published by the United Kingdom Home Office; The World Fact Book (2018), published by United States Central Intelligence Agency and; Transparency International, Corruption Perception Index 2016. The information is contemporaneous and not outdated. Having regard to the nature of the information, it must contain an element of hearsay. The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information. The information is credible. Furthermore, the Board would carefully consider the information and give it such weight as it thought fit having regard to the nature of information, the circumstances the information was obtained etc.

43.  Other than a bald assertion that the COI are unreliable, outdated and hearsay, the Applicant provided no particulars, not even any hint, as to what are untrue, not to mention his failure to provide any publication contradicting those COI.  The Court considered there is no merit in this ground.”

14.  As a result, the Judge concluded that there was no reasonable prospect of success in the intended judicial review, and refused leave to apply for judicial review.

Appeal to this Court

15.  On 25 February 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he would face hardship if he were to return to his home country, that the Board relied on news sources that were not officially recognized or were simply hearsay and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

16.  It is notable that the applicant did not provide any particulars in support of his grounds of appeal.

17.  The applicant lodged written submissions for this appeal on 18 May 2022. Those submissions largely consist of general legal principles and quoted passages from case authorities, without any explanation as to how they advance the applicant’s case.  The applicant also submitted that the Board erred by simply trying to see whether it could find fault with the Director’s decision, that the Board failed to scrutinize the Director and that it is a general practice of the Board not to question or find fault with the Director’s decision.  Further, the applicant submitted that the Board ought to have considered country of origin conditions.  The applicant did not however provide any details or particulars in support of his arguments, or identify any specific errors in the Judge’s decision.

18.  At the hearing of this appeal, the applicant did not add anything substantive to his submissions.

Discussion

19.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 

20.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal or written arguments, or 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.

21.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge’s decision, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

22.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection due in part to its adverse finding as to the applicant’s credibility, but also due to its finding that internal relocation was viable in any event.  Thus the Board found that there was no real risk of harm in the event of the applicant’s return to India.  Such findings are within the province of the Board.  The court will not interfere with such assessments unless they are vitiated on public law grounds.

23.  The applicant has not raised any potential errors or specific concerns as regards the Board’s assessment of credibility.  In any event, irrespective of whether the applicant’s claims were accepted as credible, the viability of internal relocation is fatal to his claim.  There are no valid public law grounds for interfering with the Board’s assessment. 

24.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.

25.  For these reasons, this appeal is dismissed.