MOHAMMAD WAKIL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 480/2019

[2020] HKCA 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 480 OF 2019

(ON APPEAL FROM HCAL NO 965 OF 2017)

___________________

___________________

___________________

J U D G M E N T

___________________

Hon Alex Lee J (giving the Judgment of the Court):

1.  This is the appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 2 October 2019[1] refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a 39-year-old national of India.  He previously came to Hong Kong on 23 August 2002 as a visitor. He was convicted of overstaying and sentenced to 2 months’ imprisonment and subsequently removed back to India on 7 January 2005.  He came to Hong Kong again on 11 September 2006 with permission to stay as a visitor up to 15 September 2006.  However, he overstayed again and was later arrested by police on 12 March 2009.  After being referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by the family of his sister-in-law for his brother’s ill-treatment of her and/or by his creditor for failing to repay his loans. 

3.  After his torture claim was rejected on 2 November 2012, he lodged a non-refoulement claim on 3 March 2014 on the same basis and submitted a Supplementary Claim Form on 21 January 2016.

The Director’s decisions

4.  As the refusal decision of the applicant’s previous torture claim would not be reviewed under the unified screening mechanism, the Director assessed the non-refoulement claim on grounds other than torture risk[2].

5.  By a Notice of Decision dated 23 August 2016, the Director rejected the applicant’s non-refoulement claim on the grounds of BOR 3 risk[3] and persecution risk[4].  The Director assessed that the applicant’s experience of ill-treatment in the past has not attained the minimum level of severity and the low intensity and frequency of past ill-treatment is indicative of small future risk of harm.  The Director found that the applicant encountered no trouble from the family of his sister-in-law when he was staying in Santoshpore.  Regarding the threat from his creditor, the creditor had never inflicted any harm on him in the past but only verbally threatened him back in 2001.  The Director noted that the applicant remained safe from any trouble from the creditor while he was in India.  Besides, these disputes were family disputes and private money dispute in nature.  There was no indication that the Indian government has involved in, been indifferent to or provided any form of encouragement to the applicant’s enemies in threatening or harming him.  The Director further considered that the availability of state protection and internal relocation alternatives would further lower or negate the level of risk.  Thus, the non-refoulement claim was rejected.

6.  By a notice of further decision dated 14 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk[5], except torture risk.  Having considered the applicant’s additional information, the Director found that the applicant has failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights, particularly BOR 2 risk, being violated upon his return to India.     

The Board’s decision

7.  The applicant attended an oral hearing of the appeal against the Director’s decision on 23 October 2017.  The Board did not believe the family of his sister-in-law was targeting him as his evidence is inherently inconsistent and the authenticity of the documents submitted by the applicant is highly questionable.  The Board also considered that the applicant’s assertions in relation to the outstanding loan as not credible because of a number of reasons including his inconsistent or conflicting accounts concerning the loan. The Board assessed that there is adequate state protection available to the Applicant and there are many places where he can relocate in India.  The Board found that the applicant has not successfully made out his claim.  Therefore, the Board rejected the appeal on 24 November 2017. 

The judge’s decision

8.  The applicant filed a Form 86 and a supporting affirmation on 28 November 2017 to seek leave to apply for judicial review against the decisions of the Director and Board.  At the time, the applicant only vaguely mentioned that his case was not dealt with properly in that it was rejected wrongly and unfairly; that he was not satisfied with the decisions of the Director and the Board and he also mentioned the problems he would face in his home country.  

9.  The judge noted that no ground for seeking relief was given in the applicant’s Form 86 or affirmation. The judge decided that in the absence of any legal error or procedural unfairness in the decisions being shown by the applicant, he could not see any prospect of success in the intended judicial review.  The judge also did not find any failure on both the Director and the Board to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  Therefore, the judge refused the leave application on 2 October 2019 accordingly.

The grounds of appeal

10.  The applicant filed a Notice of Appeal against the decision of the judge on 11 October 2019.  The grounds of appeal in his Notice of Appeal can be summarized as follows:

(1)     The Director failed to appreciate or give proper importance or weightage to the presence of state acquiescence in the applicant’s case.  This has led to an unfair outcome of rejecting the applicant’s non-refoulement claim.  The Director, the adjudicator and the judge failed to take such argument into account or that the Director failed to give sufficient weight to such argument before reaching the decision.

(2)     The adjudicator failed to make sufficient enquiry before finalizing the determination.  The adjudicator stated that the applicant has failed to advise any credible evidence to prove material elements of his claim.

(3)     The adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

(4)     The Director in his decision kept including meaning which suited his pre-conceived conclusion while referring to relevant COIs.  This is a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void.

Legal Principles

11.  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[6].

12.  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.

13.  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.

14.  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.

Analysis and disposition

15.  According to Re Moshsin Ali[7], 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.  Thus, the grounds pertaining to the complaints against the Director’s decisions are bound to fail. 

16.  Furthermore, the applicant’s grounds of appeal were not raised in the original leave application.As repeatedly stated by this court on other occasions, an appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below: see, eg, Re Qadir Sher[8].  This court will not entertain the applicant’s grounds which have not been canvassed at the court below and for which leave has not been sought within time by the applicant.

17.  In any event, the applicant’s grounds are untenable.  The adjudicator has considered the available materials and heard the applicant’s testimony at the hearing for assessing the applicant’s credibility and his claim.  She explained her reasoning in detail in her decision.  The applicant failed to refute the Board’s findings with evidence in support.  He filed his appeal with the Board in September 2016 and the hearing was held in October 2017.  There was more than sufficient time for him to produce the relevant evidence to the Board.  Thus, he cannot complain about not having sufficient chance to submit evidence to the Board for his appeal. 

18.  The applicant also fails to demonstrate that the judge has made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  Therefore, there is no basis for this Court to interfere with the judge’s decision. 

19.  There is no merit in any of the applicant’s grounds and no prospect of success in the intended application for judicial review.  Accordingly, we dismiss the appeal. 

[1] [2019] HKCFI 1031

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[4] 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.

[5] This refers to the risk of being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.

[6] [2018] HKCA 524 at §14

[7] [2018] HKCA 549, CACV54/2018, unreported, 24 August 2018, at §45

[8] [2018] HKCA 160 at §11