RE MOHAMMAD MUKHTAR

CACV 154 /2019

[2019] HKCA 818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 154 OF 2019

(ON APPEAL FROM HCAL NO 816 OF 2018)

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J U D G M E N T

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Hon ST Poon J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 18 March 2019 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 26 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 11 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 5 December 2015 and was permitted to remain until 19 December 2015.  He overstayed and surrendered to the Immigration Department on 4 January 2016. He lodged a non-refoulement claim on 12 August 2016. 

3.  The applicant’s claim was based on his fear that he would be killed or harmed by a member of an opposing political party named Vishwa.  It was the applicant’s case that he and Vishwa were supporters of the Communist Party of India but Vishwa changed to support the All India Trinamool Congress (“TMC”) in 2011.  Shortly thereafter, Vishwa became the Secretary of Counsellor of the Khidirpur Region.  Since 2012, Vishwa had been trying to make the applicant to support TMC but the applicant refused.  Vishwa had threatened to harm the applicant on many occasions and in December 2014, the applicant was attacked and wounded by Vishwa with a knife.  The applicant moved to Bombay in January 2015 and returned in August 2015.  However, Vishwa threatened to kill him again and so he decided to come to Hong Kong.  The details of the applicant’s claim have been summarised by the judge at [2] to [14] of the CALL-1 Form.

4.  By a Notice of Decision dated 11 April 2017, the director decided against the applicant’s claim.  The decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 14 March 2018, the Board dismissed the appeal on 26 April 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [112] of the Board’s Decision, the Board accepted that the applicant was attacked by members from an opposing political party.  However, the Board concluded that the Indian government will be able to protect the applicant.  The Board was also satisfied at [105] – [112] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 10 May 2018 which contained the following grounds for judicial review:

(1)  The Board unlawfully fettered his 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 applicant’s appeal;

(3)  The Board’s Decision was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness; and

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

8.  In the affirmation in support of the leave application dated 10 May 2018, the applicant advanced the following grounds for judicial review which are summarised as follows:

(1)  The applicant was given the appeal bundle only a few days before the Board hearing.  As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation.  The Applicant said he was confused of what happened; and

(2)  The Board relied on news which are outdated. This lack of credible source of information led to the erroneous conclusion that it was safe for him to return

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [34] to [47] of the CALL-1 Form:

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

35. 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.” 

36. The Applicant mentioned he was not legally represented when he appealed to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 11 April 2017.

37. 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.

38. 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, the Applicant was assisted by interpreters when he was represented by the Duty Lawyer Service and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

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

40. 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.

41. The Applicant received the appeal bundle on 7 March 2018. That was 7 calendar days (or 6 working days) before the Board hearing, which was scheduled for 14 March 2018. The bundle was served on the Applicant in time.

42. 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.

43. 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.

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

45. There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.

46. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He 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. He 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

47.  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.”

Grounds for appeal

10.  In the Notice of Appeal dated 28 March 2019 the applicant advanced the following grounds of appeal:

“the Plaintiff will face hardship if he is to return back to his home country and that the [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.”

11.  In his skeleton submissions dated 4 June 2019, the applicant referred to a number of cases on high standard of fairness without explaining how they are relevant to his appeal.

Discussion

12.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

13.  In any case, we are of the view that the Board was correct in concluding that the Indian government will be able to protect the applicant and that internal relocation would be viable.

14.  As for the cases referred to in the skeleton submissions, the applicant failed to explain how they are relevant.  There is no viable ground of appeal in the skeleton.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.