RE ALI JABED

CACV 119/2020

[2020] HKCA 919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 119 OF 2020

(ON APPEAL FROM HCAL 1763 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Ali Jabed, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 8 May 2020 refusing him leave to commence judicial review proceedings (“Judge’s Decision”).  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 13 August 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 2 December 2016 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of India now aged about 39, is a fear of being attacked or even killed by his maternal cousin and former business partner Sheikh Pintoo (“Pintoo”) over a failed business transaction if he should return to India. Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant and Pintoo set up a ladies’ garment business in Kolkata, India in about April 2006.  Each invested 300,000 Indian Rupees into the business.  The business prospered until 2008. 

(2)  At the beginning of 2008, while Pintoo was out of town, a regular customer of the applicant named Samar Tubrej (“Tubrej”) purchased and took delivery of 450,000 Indian Rupees worth of garments but only made a part payment of 70,000 Indian Rupees.

(3)  Tubrej disappeared with the garments.  The applicant’s efforts to find him were in vain.  The balance of the purchase price was never received or recovered.

(4)  When the applicant told Pintoo about the transaction, he paid 65,000 Indian Rupees to Pintoo as compensation.

(5)  However, Pintoo wished to withdraw from the partnership and demanded the applicant to return to him his initial investment in full.  The applicant could not pay such a large sum of money in one go.  

(6)  He was subsequently attacked by Pintoo and his brothers on 2 occasions in about early 2008.  The applicant sustained only minor injuries.  Stitches were required and his finger had to be plastered after the 2^nd attack.  He was not hospitalised and was able to recover by resting at home for a few weeks.

(7)  The applicant did not report the attacks to the police.  His mother also discouraged him from doing so, commenting that it was only a family matter.

(8)  Pintoo continued to harass the applicant by telephone but he had not taken any further physical action against the applicant after the 2^nd attack.  Worrying that Pintoo might step up his action against him, the applicant went to live in his sister’s home, which is about 1 hour away from his home, for a week before leaving India for Hong Kong in April 2008.

3.  At his screening interview with the Director’s representative(s), the applicant further disclosed that he was diagnosed with hyper-contractile bladder (with symptoms such as urinary incontinence and occasional dysuria) in August 2010 by the Queen Elizabeth Hospital (“QEH”).  In December 2013, he underwent an augmentation cystoplasty, as a result of which he requires life long self-intermittent catheterization and bladder washout.  His life would be endangered if he were to return to India as he cannot afford some of the medical treatment there.

Entry into Hong Kong, arrest and lodgment and processing of NRF Claim

4.  The applicant arrived in Hong Kong on 28 April 2008 as a visitor on his own passport and was permitted to stay until 13 May 2008.  He was arrested by the police in Hong Kong on 13 May 2008 for overstaying.  He lodged the NRF Claim by written representation with the Director on 21 May 2008. 

5.  The applicant submitted his Non-refoulement Claim Form dated 11 October 2016.  In processing the NRF Claim, the Director’s representatives interviewed the applicant on 4 November 2016.  The applicant then had legal assistance and representation from the Duty Lawyer Service. 

Director’s Decision

6.  The Director’s Decision covered all applicable grounds: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  The Director found the NRF Claim unsubstantiated under these grounds.

(1)  First, the level of risk of harm from Pintoo upon the applicant’s return to India was assessed to be low.

(2)  Second, the availability of state protection would further lower or even negate the level of risk (if any).  There is objective country of origin information (COI) showing that the Indian government does protect its citizens’ rights and has taken practical steps to monitor the conduct of the Indian police and improve their effectiveness.

(3)  Third, reasonable internal relocation alternatives are available in such a vast and populous country as India.  It is not unduly harsh or unreasonable for an able-bodied adult with 2 years’ experience in the garment trade, like the applicant, to relocate to say Delhi.

7.  As for the applicant’s health issue, the applicant has no need for intensive medical care or continued hospitalization. There is also objective COI indicating that the Indian government has taken practical measures to provide free medical services to its citizens and that medical resources at reasonable costs will be available to the applicant in India.

Appeal to Board and Board’s Decision

8.  The applicant appealed to the Board.

9.  The Board conducted a rehearing of the NRF Claim on 26 May 2017 at which the applicant, with the assistance of a Hindi interpreter, testified before, and answered questions by, the Board.

10.  The Board’s Decision covered all 4 applicable grounds for non-refoulement protection.

11.  Whilst the Board accepted the applicant’s evidence regarding his business venture with Pintoo, the Board did not accept that the applicant was attacked due to a failed transaction given inconsistencies in respect of the consideration and the manner of payment and delivery under the alleged transaction with Tubrej, which was the event at the heart of the NRF Claim.  The Board noted further inconsistencies with regard to the manner of the alleged attacks against the applicant and the injuries sustained by him when the applicant told the Board that he was not beaten but was only pushed, and he did not receive any stitches as he was afraid of needles, and with regard to whether Pintoo had actually made threats over the phone or in person to the applicant or his mother.  The Board found that the applicant did not report to the police after he was attacked because those alleged attacks never happened. The Board did not accept that Pintoo has any interest in subjecting the applicant to any of the proscribed harms.

12.  Further, the medical evidence produced by the applicant did not support his claim that he would require annual medical tests costing HK$45,000 or that the applicant was under serious health threat nor were there any evidence that the applicant could not readily obtain pads and catheters at reasonable costs in India.

Application for leave for judicial review and Judge’s Decision

13.  By a Notice of Application for Leave to Apply for Judicial Review issued against the Board under HCAL 1763/2018 on 28 August 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision.  As summarised by the Judge in [13] of the Form CALL-1 dated 8 May 2020, [2020] HKCFI 725 (“Form CALL-1”), by the Form 86 and his affirmation filed on the same date, the applicant raised the following grounds for judicial review:

(1)  that the hearing bundle was given to him shortly before the hearing of the appeal and he did not have sufficient time to prepare his case;

(2)  that the hearing bundle was mostly in English and he was unable to obtain interpretation service;

(3)  that he was confused at the appeal hearing; and

(4)  that the Board had relied upon non-officially recognised or hearsay COI as well as outdated cases.

14.  After hearing the application for leave for judicial review in open court at which the applicant was present to make oral submission, the Judge refused leave.  His reasons can be found in [14]-[18] of the Form CALL-1:

“14. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained to him. He understood the Board’s Decision because his friend had explained it to him.

15. It is quite obvious that the Board I not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.

16. Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

17. Ground (4) is his opinion without any evidence in support of it.

18. The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.”

15.  In addition to the said proposed grounds for judicial review dealt with by the Judge, we note that the applicant had also made the following complaints in the Form 86:

(1)  that the Board had unlawfully fettered its discretion by refusing his appeal “on the grounds that they did not satisfy the requirement”;

(2)  that the Board acted in a procedurally unfair manner in dealing with his appeal;

(3)  that the Board’s refusal of his appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness; and

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

However, we do not see how any of these generalised and unparticularised bare criticisms against the Board would have advanced the applicant’s appeal against the Director’s Decision.

Appeal to Court of Appeal and grounds of appeal

16.  By a notice of appeal filed herein on 18 May 2020, the applicant appealed against the refusal of leave for judicial review on the grounds that the applicant would face hardship if he should return to India (“Ground 1”); and that the Board made groundless speculations as a result of relying on non-officially recognised or hearsay new and outdated cases (“Ground 2”).

17.  On 7 October 2020, the applicant lodged written submission, by which he referred to ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R  v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

18.  The applicant appeared in person at the hearing of the appeal on 9 November 2020.  He brought to our attention a new medical issue, in support of which he submitted documents that show the following appointments at the QEH for: (1) X-ray examination on 17 September 2020[6]; (2) blood tests and X-ray investigation on 23 December 2020; (3) consultation to go through the blood test(s) and X-ray investigation results on 7 January 2021; and (4) ultrasound scanning of the urinary system on 16 September 2021.  According to the applicant, these procedures are to confirm whether he has kidney / bladder stone.  If so, he would require surgery to have the stone removed.  The applicant is concerned if he would be able to afford the operation in India.

Court of First Instance’s role in judicial review in non-refoulement claim

19.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

20.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[7]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].

Discussion

21.  As summarised in [6], [7], [11] and [12] above, the NRF Claim failed on the facts at both stages of the unified screening mechanism.  The questions whether the applicant would be at risk of life or torture if he is refouled to India and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  The applicant has not advanced any ground of appeal, properly so called, that tackles the negative findings of fact against him.  Indeed, the much-repeated bare assertion under Ground 1 that he would face hardship if he should return to India is inconsistent with the findings of both the Director and the Board.

22.  As for Ground 2, the applicant has not identified what unofficial or hearsay news or outdated cases that the Board had improperly relied on and in what respects the Board had made “groundless speculations”.

23.  Turning to the applicant’s written submission, there was no attempt by the applicant to elaborate on whether and, if so, how the legal principles he cited had not been honoured in the processing of the NRF Claim.

24.  Regarding the applicant’s new health issue, while we have sympathy for the applicant, it does not constitute a reason to allow the appeal.

25.  In short, the applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the findings by the Board.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.  Nor did he in the notice of appeal or the written or oral submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

Disposition

26.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.