RE NAUSHAD MOHAMMED

CACV 410/2022, [2023] HKCA 657

On appeal from [2022] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 410 OF 2022

(ON APPEAL FROM HCAL NO 1399 OF 2019)

________________________

________________________

_________________

J U D G M E N T

_________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 30 September 2022[1] refusing to extend the time for him to apply for judicial review and dismissing his application for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 13 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 November 2016 which rejected his non‑refoulement claim.

Background

2.  The applicant is a 46-year-old national of India. He had on two previous occasions entered Hong Kong using a false identity[2] and was repatriated to India respectively in December 1994 and April 2000, after serving sentences for various criminal and immigration offences.

3.  On 4 June 2010, he arrived in Hong Kong using the present identity, Naushad Mohammed. He was given permission to remain as a visitor until 19 July 2010, which was extended to 23 July 2020. He overstayed and was arrested by the police on 17 April 2011. He lodged a torture claim[3] on 21 April 2011, which was rejected on 23 August 2012.

4.  In the meantime, on 3 May 2011, while awaiting the determination of his torture claim, the applicant was convicted and sentenced to 12 months’ imprisonment for using false travel documents and making false representation. A Removal Order was issued against him on 12 January 2012.

5.  After the rejection of his torture claim, the applicant did not report to the Immigration Department. On 30 October 2014, he was arrested by the police for theft, for which he was convicted and sentenced to 12 months’ imprisonment in February 2015. On 12 May 2015, the applicant lodged a non-refoulement claim. After he was released, he again failed to report to the Immigration Department and was re-arrested by the police on 13 June 2016.

6.  The applicant’s claim was based on fear of being harmed or killed by three people named Aftab, Anwar and Ashraf, who were affiliated with the All India Trinamool Congress Party (“TMC”), because the applicant was their business competitor and had caused them to suffer a loss in their business, and also because the applicant was a supporter of the Community Party of India (Marxist) (“CPM”) and had worked in the youth section of CPM in his home village.

7.  The applicant claimed that Anwar and Ashraf, who were once his friends and had travelled to Hong Kong with him to purchase goods, grew jealous of his business success. Their resentment towards the applicant escalated in January 2010 as they accused him of setting up Aftab and causing his arrest for illegal smuggling activities. Shortly after that, there was a fight between the two political groups, during which Aftab and a few men tried unsuccessfully to shoot the applicant with a gun and a bomb was thrown at the applicant. It exploded and injured a passer-by but the applicant escaped unharmed. Despite having reported the incident to the police, the applicant was wanted by the police because Aftab, Anwar and Ashraf had bribed the police and lodged a complaint against him over the attack. They further reported him for using false passports for traveling. Fearing for his safety, the applicant moved to Phoolbagan in Kolkata in April 2010 and eventually came to Hong Kong in June 2010.

8.  According to the applicant, his enemies did not stop pursuing him in Hong Kong. In April 2011, some people attacked him and stole his gold chain and money while he was drunk and sitting at a roadside garden in Sham Shui Po. One of the assailants, whom he recognized to be Saifu, told him they were sent by Aftab to kill him. Later on, Saifu took the police to arrest the applicant for overstaying. The applicant also heard from his aunt in 2014 that his enemies were still looking for him and the police in India did not take any action despite he had made reports to the police station in Wadganj and the police Headquarters in Lal Bazar before he left India. The details of the applicant’s claim are set out at [11] of the Board’s decision, and summarised by the Judge at [1] to [6] of the Form CALL-1.

The Director’s decision

9.  By a Notice of Decision dated 28 November 2016, the Director rejected the applicant’s claim on the BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6] grounds. There was no assessment under the torture risk[7] ground as he had previously lodged an unsuccessful torture claim. In summary, the Director found the conflict between the applicant and his enemies had nothing to do with their political affiliations; it was purely private and personal in nature arising from business rivalry, with no political agenda involved. The Director considered there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed by his enemies upon his return to India. The Director further found state protection and internal relocation options were reasonably available which would lower any risk he might face.

The Board’s decision

10.  On 22 March 2017, the applicant lodged an appeal to the Board against the Director’s decision out of time[8]. On 28 February 2018, the Board allowed the appeal to be made out of time and fixed it for hearing on 14 May 2018.

11.  The applicant did not attend the hearing. He also did not provide any explanation for his absence despite being invited to do so by letter from the Board. The Board proceeded to determine the appeal on paper based on the available materials and evidence. By a decision dated 13 July 2018, the Board dismissed the appeal.

12.  In gist, the Board found that the applicant’s problem with his enemies stemmed from their competing business and financial interests[9]. Though the Board accepted there was a fight during an election campaign and that his enemies had threatened him with firearm, the Board did not accept that the incident was politically motivated, being of the view that it was a personal revenge by violent and criminal means[10]. The Board found there was no state involvement that could amount to persecution risk, having regard to the fact that: (1) the applicant only heard from his lawyer that his enemies had bribed the police and there was nothing to substantiate the assertion[11]; (2) the police appeared to be pursuing the applicant for a legitimate reason in light of his immigration record which showed he had previously possessed and used false passports to travel to Hong Kong, and was also the reason why he went into hiding in Phoolbagan in April 2010[12]; and (3) after the applicant arrived in Hong Kong on 4 June 2010, he was able to have his passport issued at the Indian consulate, which is indicative of non-involvement of the State in the dispute or problem claimed by the applicant[13].

13.  The Board further found his recollection of the assault in Sham Shui Po questionable. While it accepted that the applicant was attacked and had received some head injuries, the Board found it was implausible that the attacker would openly name the instigator or mention the instruction to kill him. The Board considered the incident to be more like a robbery than an attempt to take the applicant’s life[14]. Overall, the Board was of the view that the applicant was not an honest or reliable person, given his repeated dishonest use of passports[15], and that his delayed application for non-refoulement claim and repeated failure to report to the immigration Department was inconsistent with someone who had a genuine fear for his life and aspired for protection[16]. The Board also considered that internal relocation was viable and reasonable[17]. The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under the applicable grounds.

The Judge’s decision

14.  The applicant filed a Form 86 on 23 May 2019 for leave to apply for leave to judicially review of the decisions of the Director and the Board. Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review should be made promptly and in any event within three months from the day when the grounds for the application first arose. The applicant’s application was late by more than seven months. He did not give any explanation for his delay in his Form 86 and supporting affirmation.

15.  In the Form 86, the applicant put forward the following grounds for his intended challenge:

(1)  The Director and the Board were wrong in their decisions on the applicant’s non-refoulement claim.

(2)  Their decisions were neither fair nor reasonable, did not satisfy the Wednesbury test, and was a clear illustration of their unfair attitude. This in itself is enough to render their decisions void.

(3)  Their decisions were unreasonable under public law.

16.  The Judge heard the application at a hearing on 15 September 2022, during which the applicant was assisted by a Hindi interpreter.

17.  By a Form CALL-1 dated 30 September 2022, the Judge refused to extend the time for the applicant to apply for judicial review and dismissed the application. The Judge gave his reasons at [14] to [19] of the Form CALL-1 as follows:

“14. In the Applicant’s case, a delay of more than 7 months must be considered as extremely substantial and inordinate, for which the Applicant did not provide any explanation in his Form or affirmation, and at the hearing of his application he explained that he was being detained at the Castle Peak Bay Immigration Centre (“CIC”) in late 2019, but as the record shows that the Board’s decision was sent on the same day of 13 July 2018 to his then reported address without being returned through undelivered post and when he was then not in detention, I do not accept the Applicant’s explanation as valid or relevant, nor do I see any good reason for his such serious delay.

15. As for the merits, if any, of his intended application, those grounds put forward by the Applicant as stated above are all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Board had erred in their decision, or in what way were their decisions unfair or unreasonable. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor was he able to do so at the hearing of his application. As such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any merits in his intended application either.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 their 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

17. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

18. 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.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

Application for habeas corpus

18.  The applicant filed a Notice of Appeal on 13 October 2022 to appeal the Judge’s decision.

19.  On 24 October 2022, shortly after the filing of the notice of appeal, the applicant applied for a writ of habeas corpus (HCAL 1134 of 2022), claiming that his immigration detention under section 32(3A) of the Immigration Ordinance, which had lasted for 441 days[18], was unlawful.

20.  On 28 October 2022, the Immigration Department issued a Deportation Order against the applicant pursuant to section 20(1)(a) of the Immigration Ordinance, which authorises the issuance of a deportation order to a non-Hong Kong permanent resident found guilty of an offence punishable with imprisonment for not less than two years. At the same time, the applicant was also subject to a Removal Order issued on 12 January 2012 pursuant to section 19(1)(a) of the Immigration Ordinance which authorises the issuance of such an order to a non-Hong Kong permanent resident considered to be an undesirable immigrant.

21.  By his decision given on 17 November 2022[19], Coleman J dismissed the habeas corpus application. He concluded that the detention of the applicant was lawful and reasonable, having regard to the principles laid down in Harjang Singh v Secretary for Security [2022] HKCA 781, the applicant’s submissions on the detention condition in the Tai Tam Gap Correctional Institution, the applicant’s personal circumstances, his criminal record and absconding record and his explanations for his failure to report to the recognizance office[20].

Grounds of appeal

22.  The applicant’s grounds of appeal as set out in the Notice of Appeal may be summarised as follows:

(1)  The Judge’s decision was reached unfairly as the applicant was not given the opportunity to clarify his case and the situation in his home country.

(2)  The Judge failed to apply the principle of procedural fairness and to consider the rationality of the Director’s decision[21].

(3)  The decision-makers relied on country of origin information (COI) in rejecting his claim and had ignored the overwhelming evidence of violence towards minorities in his home country[22].

(4)  The decision-makers failed to consider all aspects of his evidence which is an error of law of great general or public importance[23].

23.  Despite the directions given by the Registrar of Civil Appeal, the applicant has not lodged any written submission by the stipulated time. He was deemed to have waived his right to have an oral hearing, and have elected to have this appeal disposed of on paper. The hearing fixed for 7 March 2023 was therefore vacated and we will deal with the appeal on the papers in the case.

Our reasons for decision

24.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board. They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. 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 and/or the process by which the decision was made.

(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.

25.  In light of the established legal principles set out above, we are of the view that the grounds put forward by the applicant have no merits. Our reasons are as follows:

(1)  The complaint that the Judge’s decision was unfair as the applicant was not given the opportunity to clarify his case and the situation in his home country is misplaced. The Judge listed the case for a hearing and the applicant had an opportunity to present his case to the Judge at the hearing and with the assistance of an interpreter. The Judge had considered his grounds of challenge and his explanation for the substantial delay in bringing the application. For the reasons given in the Form CALL-1, the Judge refused to extend time and dismissed the leave application. This is a decision that he was entitled to take on the facts of the case. There is no basis for this Court to interfere with his decision.

(2)  As to the complaint that the Judge failed to apply principles of procedural fairness and rationality in considering the Director’s decision, it is vague and devoid of particulars. The applicant did not explain how and/or in what ways did the Judge fail to consider the legality and rationality of the decisions being challenged or the propriety and fairness of the process by which the decisions were made.

(3)  On the complaint that the decision-makers have relied on COI in rejecting his claim and ignored the evidence of violence in his home country, the applicant has not identified which piece of COI relied on by the decision-maker was incorrect and/or how that would impact on the correctness of the decision-makers’ conclusion on each applicable grounds. The applicant did not explain the basis for the assertion of overwhelming evidence of violence towards the minorities in his home country and how that would further advance his appeal.

(4)  The applicant also complained that the decision-makers failed to consider all the aspects of his evidence in rejecting his claim. However, he has not explained or identified which part of his evidence has been ignored by the decision-makers. Contrary to the applicant’s assertion, it is evident from the Board’s Decision that thorough consideration and careful analysis were given to the applicant’s case and evidence. The Board also gave reasons in support of each of its finding and explained why it rejected the applicant’s claim on each of the applicable grounds. We see no merits in this ground of appeal.

26.  We have separately considered the decision and reasons of the Board. We do not discern any legal error, irrationality or procedural irregularity. There is thus no basis for this Court to disturb the decision of the Board. Like the Judge, we are of the view that the intended judicial review has no reasonable prospect of success, and that extension of time should not be granted to further a hopeless application.

27.  For the above reasons, the appeal has no merits. Accordingly, we dismiss the appeal.