RE HOSSAIN SARFARAJ

CACV 396/2018

[2018] HKCA 950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 396 OF 2018

(ON APPEAL FROM HCAL 769/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 10 August 2018 (published as [2018] HKCFI 1767) refusing him leave to apply for judicial review. The intended judicial review is against the decision of the adjudicator of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 3 October 2017 dismissing the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 May 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of India.  He arrived in Hong Kong on 6 January 2015 and was permitted to remain as a visitor for 14 days.  He departed for the Mainland China on 20 January 2015 and returned to Hong Kong on the same date.  His permission to remain as a visitor was extended to 3 February 2015.  He did not depart upon the expiry of his permission to remain and overstayed illegally.  He surrendered to the Immigration Department on 6 February 2015 and raised his claim for non-refoulement protection on 1 April 2015.

3.  His claim was based on the alleged fear that, if he returned to India, he would be harmed, or even killed by his business partner, who had a close connection with the political party All India Trinamool Congress.  The factual background of this case was summarized in [3] – [6] of the judge’s decision.

4.  The Director assessed the applicant’s claim on all applicable grounds, namely the BOR 3 risk[1], the BOR 2 risk[2], the persecution risk[3] and the torture risk[4], and determined the risks against the applicant.

5.  The applicant lodged an appeal/petition with the Board.  An oral hearing was held on 15 September 2017. Having heard his evidence, the Board found that the applicant had fabricated his claim in order to remain in Hong Kong.  The Board further considered that, even giving the applicant the benefit of doubt, the applicant failed to establish substantial risk of harm of the requisite severity and the harm perceived by the applicant was localized in his home area and the applicant would not be pursued by his business partner throughout India.  The Board concluded that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds.

The judge’s decision

6.  The applicant filed his Form 86 on 16 October 2017, seeking leave to apply for judicial review against the Board’s decision.  The applicant advanced the following grounds for seeking relief in the annexure to his Form 86:

(1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal;

(2)  The adjudicator acted in a manner that was procedurally unfair;

(3)  The Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, and there were procedural errors or unfairness; and

(4)  The Board failed to meet the greater care and duty owed to the applicant.

7.  Three further grounds were submitted in the annexure:

(a)  He was only given the hearing bundle for use at the hearing before the board six days prior to the hearing, rendering him insufficient time to prepare for, and being confused at, the hearing;

(b)  He answered all the questions honestly and was aggravated by the adverse finding on his credibility; and

(c)  The Board relied on the source of news which was not officially recognized or was simply hearsay.  It also relied on cases which were outdated considering the dramatic change.

8.  After holding an oral hearing on 23 March 2018, the judge refused to grant leave for the applicant to apply for judicial review.  The reasons in refusing leave were set out in [13] – [18] of her decision:

“ 13. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. The adjudicator analysed the material, claim as well as the evidence and validated her findings. The applicant’s complaints against her and the procedure undertaken are not made out. He puts forward three grounds and I find them all to be without merit and substance.

14. In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated. This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings. However, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that were in the appeal bundle. Moreover, he made this application and affirmation in English which casts further doubt on this ground. I find no merit in this ground.

15. In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh (2018) HKCA 246 at (13) said that.

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding; she had a rational basis to find against the credibility of the applicant. There are no proper grounds for interfering with such a finding. There is no merit in this ground.

16. The third ground is a complaint that the adjudicator relied on COI information that was not officially recognised, hearsay and out-of-date. However, there are no particulars supplied by the applicant to support this ground. I find no merit in this ground.

17. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

18. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  I refuse leave to apply for judicial review.”

The appeal

9.  The applicant filed his notice of appeal on 14 August 2018.  In the notice of appeal, the applicant stated that:

“ … the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal 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.” (sic)

10.  In support of his appeal, the applicant lodged his written submissions on 1 November 2018.  In it, the applicant submitted that high standards of fairness are required in determination of torture claims.

11.  We heard the appeal on 6 December 2018.

General principles

12.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeal in non-refoulement cases:

(1)  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 the 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).   

Discussion

13.  In the present case, the Board found that the applicant had fabricated his claim for non-refoulement protection in order to remain in Hong Kong.  It also found that internal relocation was a viable option for the applicant.  After rigorous examination and anxious scrutiny, the judge did not find any legal error or procedural unfairness in the proceedings before the Board.  The judge also found no reasonably arguable basis to challenge the Board’s findings.

14.  In our judgment, the applicant did not put forward any effective ground of appeal. As said above, without pinpointing any legal errors below, the applicant could not ask this Court to revisit the assessment made by the Board.  

15.  Having considered the materials available before us, as well as the submissions of the applicant, we did not find any errors of law or procedure in the proceedings before the Board. There is also no reasonably arguable basis to challenge the fairness of the process.

16.  We agree with the judge that leave should not be granted to the applicant to apply for judicial review.

17.  For these reasons, we dismiss the appeal.