RE ARAFIN MOHAMMED AZADUL

CACV 173/2019

[2019] HKCA 958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2019

(ON APPEAL FROM HCAL 431 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 Mohammed Azadul ARAFIN, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 4 April 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 1 March 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 15 July 2016 and a notice of further decision dated 21 June 2017 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively and “Director’s Decisions” collectively).

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 34, is a fear of being attacked or even killed by one Sirajul and one Syad Imam (“Syad”) if he should return to India. Such alleged fear is said to arise out of the following circumstances:

(1)  In 2004, the applicant started to carry on business as a wholesaler of mobile phones and accessories, which he sourced from Sham Shui Po, Hong Kong and resold to different retailers in Kolkata, West Bengal, India where the applicant was born and raised.

(2)  At some point, the applicant became acquainted with Sirajul.  Though he did not know much about Sirajul’s background, not even his full name, the applicant believed Sirajul to be influential and wealthy with good political connections[1]. 

(3)  Sirajul was keen on investing in the applicant’s business and kept on enticing the applicant to work for/with him. The applicant declined as he preferred to run his own business. He was, however, worried that his rejection would antagonise Sirajul.

(4)  In order to expand his business, the applicant obtained from Sirajul a loan of 600,000 Indian rupees (“Loan”), to be repaid within 2 to 3 years. The agreement for the Loan was made orally without any formality. The applicant had repaid Sirajul only 20,000 Indian rupees.

(5)  On 3 April 2006, with a view to purchasing stock for his business, the applicant came to Hong Kong with permission to stay for 14 days until 17 April 2006. He brought with him 900,000 Indian rupees, which he later converted into about HK$150,000. 

(6)  On arrival in Hong Kong, the applicant accepted an invitation from one Mohammed Nisar (“Nisar”), an Indian man he had just met at the airport, to stay with him at the Chung King Mansion.  

(7)  On 5 April 2006, the applicant left his luggage (containing his passport as well as his money) in Nisar’s room and went out.  Upon his return, he found his luggage gone. Nisar had also disappeared. The applicant tried to contact him but in vain.  He lost about HK$135,000.

(8)  Fearing that he might immediately be deported back to India where Sirajul would harm him for failing to repay the Loan, the applicant did not report the theft to the Hong Kong police.  Nor did he seek help from the Indian Consulate here. Instead, he simply overstayed in Hong Kong after 17 April 2006.

(9)  During his stay in Hong Kong, the applicant had maintained regular contacts with his family who informed him that Sirajul and his men had been looking for him with threats to kill him when they found him; that Sirajul, with the help of Syad, a supporter of the Trinamool Congress Party, had filed false court cases against every member of his family in India as revenge against the applicant; and that Sirajul and his gang had assaulted 3 of the applicant’s brothers in 2010 or 2011 for refusing to disclose his whereabouts. Despite report(s) by the applicant’s family to the police about the harassments and assaults, no action had been taken against Sirajul.

(10)   The applicant did not think it would help for him to relocate to a different part of India as Sirajul’s party, the CP, has vast resources and connections all over the country, which it can and will deploy in order to locate him. The applicant did not approach any Indian authorities for assistance either because he believes that they would side with Sirajul since he is a politician and he had seen him collect debts from, and assault, other people while accompanied by policemen and other CP members.

Arrest of the applicant and lodgment and processing of NRF Claim

3.  The applicant was arrested in Hong Kong on 12 October 2013.  He raised a claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Claim”) by way of written representation dated 15 October 2013.

4.  Upon the commencement of the Unified Screening Mechanism (“USM”) on 3 March 2014, the Torture Claim, the processing of which had not yet been completed, was taken to be a NRF Claim. The applicant then had legal assistance and representation from the Duty Lawyer Service (“DLS”). 

5.  On 24 August 2015, he lodged his completed non-refoulement claim form (“NRF Claim Form”). On 16 February 2016, the applicant further provided written answers (“Answers”) to a list of questions raised by the Director.

6.  In processing the NRF Claim, the Director’s representatives had arranged 3 screening interviews with the applicant on 9 October 2015, 12 January 2016 and 3 March 2016, all of which had to be aborted or cut short due to the applicant’s sickness on the days.

7.  Lastly, on 4 March 2016, the applicant submitted 10 pages of additional documents relating to a case of assault brought by the applicant’s mother and 4 siblings against Syad on 3 January 2013.

Director’s Decisions

8.  The 1^st Director’s Decision covered torture risk[2], persecution risk[3] and “BOR 3” risk[4]. The Director found the NRF Claim unsubstantiated under these grounds.

(1)  First, the level of risk of harm from Siraju and Syad against the applicant was assessed to be low. 

(a)  During the initial interview with the immigration officers on 15 October 2015, the applicant did not mention his monetary dispute with Siraju at all. Instead, he claimed to belong to the Communist Party of India and was involved in a dispute with the CP and that he had been hit and had received death threats. On the other hand, he made no reference to his said political problems in India in his NRF Claim Form and did not identify the 2 persons who had hit and threatened to kill him because of the political dispute with the CP (namely, Shanawaz and Rajiuddin) until he provided the Answers. It does not make sense for the applicant to omit reference to either his monetary dispute with Sirajul or his confrontation with Shanawaz and Rajiuddin, which allegedly prompted him to overstay in Hong Kong, in the respective initial interview on 15 October 2013 or subsequent NRF Claim documentation.

(b)  The applicant’s refusal to seek assistance from any authorities after the alleged loss of his passport and money in Hong Kong is inconsistent with his being in fear of his safety as a result of such loss.

(c)  Anyway, even if the monetary dispute with Siraju be substantiated, Siraju never harmed or threatened the applicant in India. The subsequent scuffles between Siraju (and Syad who helped Siraju) and the applicant’s family rested entirely on the applicant’s one-sided bare assertions, unsubstantiated by any supporting documents. Siraju’s aim would be to obtain repayment of the Loan from the applicant, which he would not achieve if the applicant were dead.

(2)  Second, the availability of state protection would further lower or even negate the level of risk (if any). There is objective country of origin information (COI) showing that the Indian government does protect its citizens’ rights and will arrest and punish police officers or other officials for taking bribes or other misconduct, even in cases where the wrongdoers are politicians or political party leaders.

(3)  Third, reasonable internal relocation alternatives are available in such a vast and populous country as India. It is not unduly harsh or unreasonable for an able-bodied adult like the applicant to relocate to say Mumbai. There is no evidence that his claimed enemies can or will mobilise the power or resources necessary to locate the applicant throughout India.

9.  Following the 1^st Director’s Decision, by a letter dated 31 May 2017, the applicant was invited to submit additional relevant facts on or before 14 June 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable ground. The applicant did not respond to such invitation. In the absence of additional information, by the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[5].

Appeal to Board and Board’s Decision

10.  The applicant appealed to the Board after the 1^st Director’s Decision on 29 July 2016.

11.  The Board conducted a rehearing of the NRF Claim on 11 January 2018 at which the applicant, with suitable interpretation, testified and answered questions by the Board.

12.  The Board’s Decision covered all 4 applicable grounds[6] for non-refoulement protection.

13.  The Board was not convinced that the applicant had lost almost all his money in Hong Kong in the circumstances described by him, which were too farfetched to be believable. However, having this part of his story disbelieved was not fatal to the NRF Claim as the Board did not consider such alleged loss to be the centerpiece of the applicant’s story, which the Board took to be the fact that Siraju has been trying to seek the applicant out since April 2006 by harassing his family by various means because of the applicant’s failure to repay the Loan. The Board found such centerpiece of the applicant’s story credible.

14.  Nevertheless, the risk of the applicant being subject to ill treatment to the level that warrants non-refoulement protection if he is to be refouled to India was considered to be low. Siraju’s harassments have not caused any severe harm to any members of the applicant’s family who have continued to live in the same place. Given the number of years that have since lapsed, it is unlikely that Siraju will escalate his actions to occasion graver harm against the applicant. 

15.  The Board also came to the same conclusions as the Director on the availability of state protection and reasonable internal relocation alternatives.

Application for leave for judicial review and Judge’s Decision

16.  By a Notice of Application for Leave to Apply for Judicial Review issued against the Director under HCAL 431/2018 on 16 March 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Director’s Decisions[7], without setting out any ground upon which relief was sought.

17.  The affirmation in support filed on the same date did not really add much either (sic):

“I would like to review and reject the decision on my non-refoulement claim made by the immigration department. They disregard my dangerous situation.”

18.  As the applicant did not request for an oral hearing, the Judge dealt with the application on the material before him. The Judge explained the refusal of leave at [12]-[16] of the Form Call-1 dated 4 April 2019, [2019] HKCFI 408, as follows:

“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in the decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

13. In the present case the applicant did not provide any ground of complaint against the Board’s decision or any particulars as to why it was wrong to reject his claim or dismiss his appeal, and I fail to see any reason for interfering with the Board’s evaluation of the risk of harm in his claim based on the evidence and information available before the Board.

14. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal and grounds of appeal

19.  By a notice of appeal filed herein on 11 April 2019, the applicant appealed against the refusal of leave for judicial review on the following ground (sic):

“Honourable Justice did not consider my claim on the eye of law. Law of Hong Kong and international would not cancel my claim but justice cancel it.”

20.  On 12 June 2019, the applicant lodged written submission by which, apart from repeating that he would be killed by his “strong” and “powerful” enemies if they found him anywhere in India, he complained that the current screening process is defective as it does not stop “refugees” who come to Hong Kong with the aim of making money from doing so[8]; that the DLS lawyer did not help him at all; that it was impossible for him to read the “big bundle” given to him; that the Board did not give him “enough interpreter”; that he did not like and objected to the interpreter provided by the Board but the Board continued with the hearing; that the hearing was very short and that he could not tell the Board all his problems.

21.  The applicant appeared in person at the hearing of the appeal on 20 August 2019. He had nothing useful to add to the notice of appeal or written submission.

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

22.  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

23.  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[9]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) & (4)].

Discussion

24.  As summarised in paragraphs 8, 9, 13 to 15 above, the NRF Claim failed on the facts at both stages of the USM. The questions whether the applicant would be at risk of life or torture if he is refouled to India and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director). The applicant has not advanced any ground of appeal, properly so called, that tackles the negative findings of fact against him.

25.  In this regard, none of the matters asserted in the applicant’s written submission concerning the hearing before the Board had been raised as grounds for judicial review before the Judge. It is thus, as a matter of principle, not open to the applicant to raise them now on appeal for the first time, well outside the time limit for bringing judicial review proceedings.

26.  In any event, we see no merit in such allegations. The Director’s Decisions and the Board’s Decision explained in great detail both the factual and legal bases upon which those determinations were reached. The applicant has not given any particulars as to how the presentation of any aspect of the NRF Claim, whether legal or factual, before the Director or the Board had been adversely affected by the alleged issues he had with the DLS lawyer advising and representing him or the interpreter arranged by the Board, his alleged inability to read the bundle or the length of the hearing before the Board.

27.  As for the “ground” in the notice of appeal, the applicant has failed to identify any principle of Hong Kong or international law, the application of which would have entitled him to leave to judicially review the rejection of the NRF Claim.

28.  The applicant did not in the Form 86 point to any error of law, procedural unfairness or irrationality in the findings by the Board. That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed. 

29.  Nor did he in the notice of appeal or written submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.

Disposition

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