ALI HAYDAR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 560/2021

[2022] HKCA 1638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 560 OF 2021

(ON APPEAL FROM HCAL NO 1948 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 2 December 2021, DHCJ P Li (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 28 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 14 December 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 10 December 2021, the applicant filed a Notice of Appeal against the Judge’s decision. 

3.  In compliance with the directions of the Registrar of Civil Appeals given on 10 December 2021 and Practice Direction 4.1, the applicant lodged his skeleton argument on 24 December 2021. 

Background

4.  The Applicant is a national of India.  He came to Hong Kong on 4 November 2015.  He overstayed and surrendered to the Immigration Department on 20 November 2015. On 17 May 2016, he raised his non-refoulement claim alleging that if refouled, he would be harmed or killed by his creditor Sheikh Shamsher (“SS”) and his men for his failure to repay a loan.  The factual background of this case is succinctly summarized by the Judge in [2] to [21] of the Form CALL-1 ([2021] HKCFI 3603).

5.  By a Notice of Decision dated 14 December 2017, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her.

6.  On 2 January 2018 the applicant lodged an appeal to the Board against the Director’s decision.  The appeal was heard on 7 August 2018 and by the decision dated 28 August 2018, the Board rejected the appeal/petition and confirmed the Director’s decision.  At the hearing, there were 2 issues before the Board: (i) late filing of the appeal and (ii) whether the applicant had provided credible claims of fear of harm by SS due to his failure to repay a loan.

7.  On issue (i), as the delay was minimal and the applicant was in prison having been convicted of drug trafficking, the Board allowed the applicant’s late filing of the appeal. 

8.  On issue (ii), for the reasons set out at [36] to [44] of its decision, the Board found the applicant’s evidence was vague, inconsistent and implausible, and that the applicant was not a credible witness.  The Board rejected the applicant’s allegation that he had borrowed money from SS to set up a business, and was subsequently threatened and assaulted by SS due to his failure to repay the loan.  The Board also noted the applicant’s extensive travel history and his voluntary return to India on many occasions before his last arrival in Hong Kong on 4 November 2015.  The applicant’s conduct was inconsistent with his claimed fear of SS; thus he was not considered a genuine asylum seeker.  In any event, the relevant country of origin information (“COI”) suggested that there is reasonable state protection.  Since the Board found that the applicant did not face any real risk of proscribed harm if refouled, it was not necessary to make findings in relation to the viability of internal relocation.  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds. 

Decision of the court below

9.  On 14 September 2018, the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board.  He did not provide any ground for seeking relief in his Form 86 or in his supporting affirmation.

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  By the decision dated 2 December 2021, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons for the refusal were set out at [26] – [28] of the Form CALL-1 as follows:

“26. The applicant applied for leave for judicial review on 14/9/2018. He did not specify any error in the decision of the TCAB.

27. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

28. There were serious inconsistencies in his evidence. The factual basis of his claim was implausible.  The extensive travel history to Hong Kong and the repeated extension of time for repayment by the creditor cast grave doubt on his evidence.  I agree with the adjudicator that the applicant was not credible.  In my judgment, there is no error of law or procedure.  The decision is reasonable.”

Appeal to this Court

11.  On 10 December 2021, the applicant filed a Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he stated:

“(a) the Learned Judge had failed to consider all applicable grounds of Non-refoulement Claims and in particular Non-refoulement on the grounds of risk of violation of articles 2 and 22 of the Hong Kong bills of right ordinance; (b) the learned Judge was wrong in accepting the adjudicate finding that ‘the only fact established is that the applicant is an Indian male, he faces no risk of harm at all’ to conclude that the persecution risk failed, (c) the findings by the Learned Judge that the adjudicator’s decision to be without fault were irrational.”

12.  In his written submissions, he quoted passages from ST v Director of Immigration^[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on high standards of fairness that should be applied to the determination of a non-refoulement claim, and complained that the Board had acted in a procedurally unfair manner without properly assessing his credibility. 

Legal principles

13.  In assessing the merit of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are 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 rejected by the judge or for running arguments which could and should have been raised but were not raised before 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 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

14.  The grounds of appeal as advanced by the applicant were not valid grounds of appeal as it merely showed his general disagreement with the Judge’s decision. 

15.  As explained in [13] of this Judgment, the role of the Court in a judicial review is not to provide a further avenue of appeal against the Board’s decision.  The assessment of risk and whether the applicant’s case is established on the applicable grounds is within the jurisdiction of the Board.  The Board had clearly set out the law under all the applicable grounds and its reasons in rejecting the applicant’s claim on each applicable ground.

16.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility. His evidence was vague and inconsistent in relation to the amount and terms of the loan, and the details about how his business failed, and the Board found that he had fabricated his claims for the purpose of applying for non-rofoulement protection. 

17.  It was further found that the applicant’s extensive travel history and returns to India on numerous occasions before he came to Hong Kong in November 2015 was inconsistent with his claimed fear of harm by SS as a genuine asylum seeker.  The reasons for rejecting the applicant’s claim on all applicable grounds were clearly set out by the Board at [47] to [55] of its decision. 

18.  These were facts which the Board was entitled to find, and we are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny. We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

19.  Lastly, we do not find that Article 2 (right to life) or Article 22 (equality before and equal protection under the law) of Hong Kong Bill of Rights Ordinance (Cap. 383) are engaged in this case as it is the Board’s finding that the applicant’s claim on BOR 2 risk was not made out and there is no credible evidence to suggest the applicant would face any real risk of being deprived of his right to life if he is refouled to India.  There is also no evidence to suggest that the applicant’s case was not fairly assessed by the Board and the Judge.

Order

20.  For the above reasons, this appeal is dismissed.