RE BIND ASHOKE KUMAR

CACV 283/2019

[2019] HKCA 1081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 283 OF 2019

(ON APPEAL FROM HCAL 767 OF 2018)

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JUDGMENT

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“Judge”) given on 14 June 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/an adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 24 April 2018 dismissing the applicant’s appeal against the decision made by the Director of Immigration (“Director’) dated 23 December 2016. 

Background

2.  The applicant is a national of India.  He arrived in Hong Kong on 21 September 2013 as a visitor and was permitted to stay until 5 October 2013.  He did not depart and had overstayed in Hong Kong since 6 October 2013.  He was arrested by the police on 29 December 2013 and was then referred to the Immigration Department for investigation.  On 1 January 2014, he lodged his non‑refoulement claim.

3.  The details of the applicant’s claim were set out in [6] of the Director’s decision and [4]‑[5] of the Board’s decision, and summarised by the Judge in [1] to [11] of the CALL‑1 Form dated 14 June 2019 [2019] HKCFI 1406.  In brief, the applicant claims that, in 2008, he met a man called Munna who claimed to be a businessman and offered the applicant some merchandising work for which the applicant was required to travel to Mainland China and Thailand to purchase and import to India garments and electronic goods.  In 2011, because Munna was in urgent need of money and asked him for assistance, the applicant borrowed 30,000 Indian Rupees from two men, Zakir and Akhtar, who were leaders of the Communist Party of India (Marxist) (“CPI(M)”) for Khidderpore.  After about two weeks, as neither the applicant nor Munna was able to repay the debt, Zakir and Akhtar assaulted the applicant and threatened to kill him.  The applicant says it took 1.5 months for him to recover from the injuries.  He reported the matter to the police, but they refused to register the complaint and only said that they would take action later.  After the applicant was assaulted by Zakir and Akhtar again in September 2013, Munna advised him to flee to Hong Kong.  The applicant did not report this second assault to the authorities in India as he did not believe they would assist him.  He did not move elsewhere in India because Zakir and Akhtar were influential across the country.  The applicant left India and arrived in Hong Kong on 21 September 2013.  He claims that between then and December 2013, he attempted to surrender to the Hong Kong police but they ignored his requests.  He says he was unaware of how to raise a non‑refoulement claim until 1 January 2014.  He fears that if he returns to India he will be injured or even killed by Zakir and Akhtar, and that the authorities there will support them and not protect him.

4.  By his Notice of Decision dated 23 December 2016, the Director rejected the applicant’s claim on all applicable grounds, namely, torture risk,^[1] BOR 2 risk,^[2] BOR 3 risk^[3] and persecution risk.^[4]

5.  The applicant appealed to the Board against the decision of the Director.  The applicant attended the hearing before the Board on 28 February 2018 where he was assisted by an interpreter.  At [14]‑[38] of its decision, the Board set out the evidence and explanation given by the applicant in response to the Board’s questions at the hearing.  In the result, the Board disbelieved the applicant and took the view that he had fabricated his claims for the purpose of prolonging his stay in Hong Kong: see [63].  The Board highlighted several issues regarding the credibility of his evidence. First, the applicant provided vague and unsubstantiated evidence, which contradicted that given in his written submissions.  Secondly, the applicant appeared to forget the key parts of his evidence.  Thirdly, other areas of the applicant’s evidence were fanciful which, coupled with other unsatisfactory evidence, indicate an overall pattern of falsehoods.  In addition, the Board found it difficult to accept that Zakir and Akhtar would give the applicant an interest‑free loan to be repaid within one week, then allowed additional time for repayment, then move straight to a physical assault and death threats, but then not take any further action for a period of two years (until September 2013).  The Board also found it difficult to accept that the applicant saw his best option as leaving India, rather than relocation within India, among its 1.2 billion people, or entering a neighbouring country.  At the end, the Board did not accept that the applicant borrowed money from Zakir and Akhtar, or that he was subsequently attacked, or that he had fled India in fear.  On that basis the Board rejected the applicant’s claims on all applicable grounds.

The Judge’s decision

6.  The applicants filed a Form 86 on 3 May 2018, seeking leave to apply for judicial review against the Board’s decision. The applicant advanced the following grounds for review:

(1)  the Board 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 decision was unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness;

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

7.  In particular, as summarised in [23]‑[24] of the CALL‑1 Form, the applicant complained that he lacked legal representation and language assistance after the Director’s decision, that he was given the appeal bundle only a few days before the Board hearing, that he was confused as to what was happening, and that the Board had significantly relied on news which was not officially recognised or was simply hearsay and on outdated cases.

8.  After an oral hearing attended by the applicant with the assistance of a Hindi interpreter, the Judge gave his decision on 14 June 2019, refusing to grant leave to apply for judicial review.  In the CALL‑1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [28]‑[41] (footnote omitted) for his refusal to grant leave:

“Discussion

28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29. A non‑refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising 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 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.’

30. The Applicant said there was a lack of legal representation after the Director’s decision dated 23 December 2016.

31. The Court of Appeal has repeatedly stated that an applicant of non‑refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

32. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

33. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

34. According to para 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para 12.6 of the ‘Practice and Procedural Guide of the Administrative Non‑refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

35. The Applicant said he received appeal bundle on 21 February 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time.

36. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first‑tier screening of his claim. The Applicant’s case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

37. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

38. The Applicant said he answered all the questions honestly in the Board hearing. That means he knew well what was asked and how to answer. He was not confused.

39. There was no evidence that the Adjudicator had cherry‑picked information or taken into account outdated cases or information not officially recognised or simply hearsay.

40. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non‑refoulement claim.

Conclusion

41. The Applicant’s complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant him leave for judicial review.”

The appeal

9.  On 25 June 2019, the applicant filed a notice of appeal, in which the grounds of appeal are stated as follows:

“that the [applicant] 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.”

10.  In his skeleton submissions lodged on 21 August 2019 for the purposes of this appeal, the applicant set out certain general legal principles and case law relating to torture claim and the requisite “high standards of fairness” without referring or relating them to his own case.

11.  We heard the appeal on 23 September 2019. At the hearing, the applicant confirmed that he had nothing to add to the written materials, except that he said his house in India had been bent down and there was no one left in his family.

Discussion

12.  In the present case, the Board rejected the applicant’s claim on the basis of lack of credibility and concluded that he had fabricated his evidence to prolong his stay in Hong Kong.  Further and in any event, the Board found that, even assuming the applicant had an outstanding debt and had received physical assault and death threats from Zakir and Akhtar, internal relocation was a viable option; see [37]‑[38] of the Board’s decision. 

13.  As this court has repeatedly stated, assessment of the evidence and COI materials and risk of harm is primarily a matter within the province of the Board as the primary decision‑maker.  The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the Board’s decision; see Re Nupur Mst [2018] HKCA 524 at [14].  The Judge duly considered the application with reference to the proposed grounds for judicial review and did not find any realistic prospect of success.

14.  The applicant has failed to point to any error in the Judge’s reasoning or decision.  In fact, he has not engaged with that decision.  Essentially, what is now stated in the notice of appeal and the skeleton submissions before us is an invitation to this Court to reassess his claim afresh or to entertain certain vague criticism of the Board’s decision.  This is not a proper course in an appeal against a judge’s refusal to grant leave to apply for judicial review.  In any event, the applicant has wholly failed to substantiate his allegation in the notice of appeal that the Board had improperly relied on certain COI materials.

15.  For these reasons, the appeal is 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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3]  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.

[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.