RE ALI ASRAF

CACV 212/2020

[2020] HKCA 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 212 OF 2020

(ON APPEAL FROM HCAL 6/2018)

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J U D G M E N T

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Hon P Ng J (giving the Judgment of the Court):

1.  This is an appeal against the Order of Deputy High Court Judge Bruno Chan dated 16 June 2020 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the Decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“Board”) dated 15 December 2017 dismissing the Applicant’s appeal against the Decision and Further Decision of the Director of Immigration (“Director”) dated 12 May 2016 and 4 July 2017 rejecting the Applicant’s non-refoulement claim.

Background

2.  The Applicant is a national of India from the State of West Bengal.  He first entered Hong Kong on 3 April 2014 and returned to India on 4 April 2014. He again entered Hong Kong on 11 June 2014 and was permitted to stay as a visitor until 25 June 2014.  He overstayed and was arrested by the police on 28 June 2014.  He was referred to the Immigration Department on 29 June 2014.  He lodged a non-refoulement claim by written representation dated 29 June 2014. 

3.  The Applicant’s claim is based on his fears that if he were to return to India, he would be harmed or killed by a moneylender and/or his associates as he was unable to repay the money he borrowed from the moneylender.  Details of the Applicant’s claim have been summarised by the deputy judge at [2] to [6] of the Form CALL-1 and more particularly by the Board at [28] - [42] of the Board’s Decision.

4.  By a Notice of Decision dated 12 May 2016, the Director rejected the Applicant’s claim.  The Director’s Decision covered torture risk, BOR 3 risk and persecution risk.  On 14 June 2017, the Immigration Department wrote to the Applicant stating that they intended to further consider his claim with reference to BOR 2.  The Applicant was invited to supply additional facts relevant to his claim including his rights under BOR 2.  None was provided.  By a Notice of Further Decision dated 4 July 2017, the Director assessed the Applicant’s claim based on BOR 2 risk and decided against him.

5.  The Applicant appealed to the Board.  After a hearing on 17 October 2017, the Board assessed and rejected all the aforesaid 4 grounds in a Decision dated 15 December 2017 at [44] - [45].  In addition, the Board was satisfied at [51] and [52] of its Decision that internal relocation would be viable without undue hardship to the Applicant.

The judge’s decision

6.  The Applicant filed a Form 86 and an affirmation in support on 2 January 2018.  As summarized by the deputy judge at [12] of Form CALL-1, the Applicant advanced the following grounds in support of his leave application: 

(1)  irrationality—failure to consider the concept of state acquiescence;

(2)  procedural impropriety—insufficient inquiry and failure to provide adequate reasons for its decision;

(3)  procedural impropriety/unfairness—failure to investigate the Country of Origin Information of India;

(4)  irrationality—failure to place weight on relevant information and/or selectivity placing weight on irrelevant information;

(5)  irrationality—failure to consider a consistent system of human right violation;

(6)  irrationality—failure to consider if state protection exists in India;

(7)  irrationality—placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8)  procedural impropriety—failure to call for psychological and/or psychiatric reports and/or evaluations;

(9)  procedural impropriety—applying the incorrect standard of proof;

(10)  no reasonable basis for rejecting his claim on credibility;

(11)  failure to consider the extended form of state acquiescence;

(12)  failure to fully consider the COI reports in assessing the risk to the Applicant;

(13)  irregularity in that the decision-maker for the Board being a different person from the interviewing Immigration Officer; and

(14)  no proper basis for consideration of internal relocation. 

7.  The Applicant did not request an oral hearing before the deputy judge who dealt with the application on paper.

8.  At [13] to [17] of the Form CALL-1, the deputy judge gave the following reasons in refusing leave to apply for judicial review:

“13.  These are however all just broad and vague assertions of the Applicant with a few key words or phrases but without any particulars or specifics or elaboration as to how they applied to his case, or how the Board had erred in its decision, or in what way was state acquiescence relevant to his claim, or why were psychological/psychiatric reports necessary for his case, or how the Board failed to consider the COI relevant to his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any basis or merits in any of them or that they are reasonably arguable for his intended challenge.

14.  As for his complaint that his appeal before the Board was not heard by the same immigration officer, I fail to see any rationale behind this complaint… and I fail to see how he could be prejudiced or adversely affected by the process before the Board. There is simply no merit in this complaint of the Applicant either.

15.  As has been repeatedly emphasized by the Court of Appeal, 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 [and] 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…

16.  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.

17.  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.”

This appeal

9.  In the Notice of Appeal dated 22 June 2020, the Applicant’s grounds of appeal are that:

“…the gravity of my circumstances have noted [sic] been weighed or realized by both putative Respondents[1] while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

10.  In his affirmation in support of the Notice of Appeal, the Applicant stated “I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review” without identifying what that ground might be.

11.  In his skeleton submissions dated 22 October 2020, the Applicant first cited 2 Hong Kong authorities viz ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 on the requirement of “high standards of fairness” without explaining how they assist him in this appeal or in what way the deputy judge has fallen into errors.

12.  The Applicant then submitted that the Board had acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

13.  The Applicant further submitted that a decision of an administrative body exercising discretionary decision-making functions, presumably referring to the Board or the Director, can be set aside if the resulting decision is “unreasonable”, citing Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.

14.  Lastly, the Applicant referred to section 37ZT of the Immigration Ordinance, Cap 115, concerning late filing of notice of appeal to the Board, again without explaining its relevance to this appeal.

15.  Since the Applicant failed to appear at the hearing, we proceeded with the appeal on the basis of the materials in the appeal bundle in his absence.

16.  In re Kartini unrep, CACV 240 of 2019, Lam VP and Bharwaney J, 9 September 2019, Lam VP (giving the Judgment of the Court) at [13] highlighted the general propositions that Court of Appeal has adopted in determining an appeal for non-refoulement cases as follows:

“(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 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. 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.”

17.  In the present case, the Applicant complains of numerous errors on the part of the Board (and the Director) in his Form 86 but fails to identify any error on the part of the deputy judge in the Notice of Appeal or his skeleton submission. Specifically, with regard to the Applicant’s persistent claim that it would be unsafe for him to return to India, this had been canvassed and rejected by the Board who was also satisfied that internal relocation was a viable option without undue hardship to him. For reasons given in the Form CALL-1, the deputy Judge had refused to intervene by way of judicial review.

18.  As stated above, assessment of evidence and risk of harm etc is primarily within the province of the Board and it is not the role of this Court to re-examine the decision of the Board as if it were a fresh application for judicial review. Anyway, regarding the complaints of procedural unfairness as well as Wednesbury unreasonableness on the part of the Board as alleged in his skeleton submissions, we have examined the Board’s Decision and do not find any merits in the complaints.

19.  In his affirmation in support, the Applicant appears to be contending that the deputy judge might not have considered a good ground of appeal without identifying that ground, let alone giving sufficient particulars of it.  In these circumstances, this ground is bound to fail.

20.  Lastly, we cannot see any relevance of Section 37ZT in the present appeal.

21.  We agree with the deputy judge that leave to apply for judicial review should be refused.

22.  For these reasons, we dismiss the appeal.