RE ISLAM NAZRUL

CACV 125/2021

[2021] HKCA 1892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 125 OF 2021

(ON APPEAL FROM HCAL 1277 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 against the order made by Deputy High Court Judge K W Lung (“Judge”) on 16 March 2021 (“Judge’s Decision”) refusing to grant leave for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 28 June 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”) by a notice of decision dated 28 July 2017 (“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, is a fear of being harmed or even killed by a loan shark named Manoj Kumar (“MK”) for failing to repay a loan.

3.  The circumstances allegedly giving rise to such fear have been set out in paragraph 6 of the Director’s Decision, paragraphs 6 to 14 of the Board’s Decision and [5] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 632 (“Form CALL-1”).

4.  Briefly:

(1) The applicant started a garment business in 2013.

(2) In March 2014, the godown was destroyed by fire.  As a result, the applicant suffered a huge business loss.

(3) To cover such loss and to start a new mobile phone business, he borrowed 500,000 IDR (“Loan”) at a monthly interest rate of 10% from MK, whom he believed to be closely associated with the Chief Minister of the ruling Trinamool Congress Party (“TMC”).  He promised to repay the Loan within 1 year.

(4) The applicant paid interest on the Loan for 3 to 4 months but had not settled any part of the principal.

(5) After his return from a week long sourcing trip to Hong Kong in June 2014, his wife told him that MK had gone to their home with 8 to 10 TMC people to threaten that he would kill the applicant and beat up or abduct his wife if he did not settle the Loan as soon as possible.

(6) The applicant was assaulted and sustained minor injury at a subsequent meeting with MK and his subordinates.

(7) He did not report the threats or the assault to the police, thinking that they would not listen to him, or worse, would hand him over to MK.

(8) He hid at his aunt’s place in Metiabruz for 2 uneventful months, with his phone switched off.

(9) In fear of being located by MK with the widespread network of the TMC, the applicant fled to Hong Kong, while his family hid in Poilin, without being found by MK.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant last arrived in Hong Kong on 13 August 2014 with permission to stay until 16 August 2014.  He overstayed.  He surrendered to the Immigration Department and raised the NRF Claim by written signification on 2 September 2014.  On 12 January 2017, during his release on recognizance, he was arrested for taking employment while being a person in respect of whom a removal order is in force, for which he was sentenced to 15 months’ imprisonment.

Director’s Decision

6.  After considering the information provided by the applicant in his non-refoulement claim form dated 24 June 2017 (“NCF”) and at the screening interview on 24 July 2017 (“Interview”), the Director found the NRF Claim unsubstantiated on any ground for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1) First, the risk of future harm from MK was low.  MK’s ill-treatment was neither intense nor frequent enough to attain a minimum level of severity.  He only wanted to recoup the Loan.  His behaviour showed no real intention to kill the applicant. 

(2) Second, the availability of reasonable state protection would lower or even negate the risk, if any.  There is objective country of origin information (COI) showing that reforms have been and are on-going in India with objective indications of positive results in recent years.  There are channels for complaints against corruption.  The applicant chose not to seek assistance from the police.  However, his belief that MK had connection with the TMC and influence over the police is mere speculation without any supporting evidence.

(3) Third, the perceived risk can be further reduced by internal relocation.  MK was unlikely to be able to locate the applicant within such a large and populous country like India. He was unable to find him in Metiabruz.  The applicant, an able-bodied adult with 12 years of working and business experience, would suffer little or no hardship in moving to say Mumbai.   

Appeal to Board and Board’s Decision

7.  The applicant appealed to the Board.  The Board conducted a rehearing of the NRF Claim on 28 March 2018, at which the applicant was present to give evidence and answer the Board’s questions through a Hindi/English interpreter.

8.  The Board dismissed the appeal.  The applicant was found not credible.  His evidence was vague, internally discrepant and inconsistent with much of the information given in the NCF and at the Interview.  When confronted with the discrepancies, the applicant was unable to give any reasonable explanation.  Given the adverse finding on the applicant’s credibility, it was unnecessary for the Board to consider state protection or internal relocation.

Application for leave for judicial review and Judge’s Decision

9.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1277/2018 on 4 July 2018 and a supporting affirmation filed on the same date, the applicant applied for judicial review of the Board’s Decision on grounds cited by the Judge at [11] of the Form CALL-1 as follows:

“In his affirmations and a separate attachment in support of his application, he set out his grounds summarized as follows:

(1) no reasonable basis or adequate reasons to reject his credibility;

(2) failure to consider extended state acquiescence;

(3) failure to consider the COI;

(4) irregularity: the adjudicator is not the same immigration officer; failing to investigate the COI; selective weights to COI; adjudicator referring to COI without prior referring it to the applicant; failing to consider consistent system of human right violation; failing to consider state protection; consider irrelevant issues; no legal representation or hearing for the BOR 2 risk assessment;

(5) procedural impropriety: no sufficient chance for the applicant to call evidence; failing to call psychological and/or psychiatric report; applying incorrect standard of proof and no proper basis for internal relocation assessment.”

10.  The applicant did not ask for an oral hearing.  The Judge refused leave on paper for the reasons set out in [12] to [17] of the Form CALL-1:

“12.     The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.     In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. … 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.’

14.     The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

15.     His grounds in support of his application above are sweeping. Most of them are not applicable to his case.  The Board has considered his evidence in the hearing before it. See paragraphs 47-58 in the Board’s Decision.  I consider that it is unnecessary to address each of his grounds.  I have dealt with the relevant grounds by reference to the authorities above.  There is no evidence or specifics in support of the other grounds. There is no problem with the consideration of the Country of Origin Information by the Board or the application of the law to his case.  The grounds above should be rejected.

16.     The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.     There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial.”

Appeal to Court of Appeal

11.  By the notice of appeal filed herein on 24 March 2021, the applicant appealed against the Judge’s Decision on the ground that the Director and the Board did not properly weigh the gravity of his circumstances.  He further deposed in his supporting affirmation that there was a good ground of appeal, but without stating what it was.

12.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals by letter dated 17 June 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 5 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

13.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 10 August 2021 was therefore vacated, leaving us to deal with the appeal on paper on the basis of the material already filed with the court.

Discussion

15.  In view of the stroppy manner in which the applicant has conducted this appeal, we can dispose of the same shortly.

16.  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 (or that of the Director) 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 shall interfere if and 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 [2018] HKCA 524 at [14(2) & (4)].

17.  The complaint in the notice of appeal, vague and unparticularised as it is, is directed against the Director and the Board.  The applicant simply did not in the notice of appeal 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.  Nor can we act on a bare assertion (made in the supporting affirmation) that a ground of appeal exists.

18.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are both in order.

Disposition

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