ANSARI FAIYAZ v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 362/2018

[2018] HKCA 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 362 OF 2018

(ON APPEAL FROM HCAL NO. 1139 OF 2017)

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J U D G M E N T

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

1)  Appeal from First Instance Judge

1.1  This is an appeal against the decision of Deputy High Court Judge (‘DHCJ’) Josiah Lam given on 30 July 2018 refusing leave to the applicant to apply for judicial review.

1.2  The applicant did not file his skeleton arguments within the time limit imposed in the directions given by the Registrar of Civil Appeal and contained in the letter to the applicant dated 3 September 2018 at paragraphs 3(1) and 5.  It was only on 22 October 2018 that the applicant lodged into Court his skeleton submissions.

1.3  In such circumstances, the Court will vacate the hearing date of 13 November 2018 and will proceed to consider the appeal on paper.  In consideration that the applicant is a litigant in person, his skeleton submissions lodged out of time will also be considered.

2.  Factual Background

2.1  The applicant is an Indian national who allegedly entered into Hong Kong illegally by boat from China on 11 December 2015.  He surrendered to the Immigration Department on 14 December 2015.  On 21 June 2016, the applicant lodged his torture claim.  The basis of his claim is that if he were to return to India he would be harmed or even killed by his creditor, AK and his subordinates, for not being able to repay the loan to AK.

2.2  The background facts have been summarized in the Torture Claims Appeal Board Decision (‘Board’s Decision’) as follows :

(1)  The applicant’s claim is that in June 2009 he borrowed 750,000 Indian rupees at a rate of 6% per month from a money-lender, Anoop Kumar [AK], in order to expand his tailoring business.

(2)  However, in August 2009, the applicant’s shop burnt down, leaving the applicant unable to pay interest on his loan or repay the capital.  He explained this to AK but the money‑lender demanded his money back and began harassing and threatening the applicant.  The applicant moved to a new place about 40 km away in order to avoid AK and he tried to report his threats to the police but they would not take the complaint.  The applicant decided to move further to Gurgaon, a city next to New Delhi, where he stayed for seven to eight months before leaving for China in June 2010.  The applicant left from Kolkata airport, having stayed in Kolkata for one month.

3)     The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 30 November 2016.  The decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, BOR Article 2 (right to life) risk, persecution risk and torture risk (‘Director’s Decision’).

4)   The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 28 September 2017, the Board dismissed the applicant’s appeal on 19 December 2017 (‘Board’s Decision’).

4.2  The Board based its refusal on the following findings succinctly summarized by DHCJ Josiah Lam :

‘ 24. While the adjudicator accepted the applicant had borrowed money from AK, he did not believe the applicant was harassed by AK or the applicant left India in fear of AK. The adjudicator noted the applicant had stayed in China for five years without seeking asylum before he came to Hong Kong to apply for protection.

25. The adjudicator found the applicant’s complained situation arose from a private dispute. AK was not a ‘state actor’. The state was not involved.

26. The adjudicator considered the applicant had not made enough efforts to complain his situation to the authorities in India. He did not accept reasonable state protection was not available to the applicant.

27. The adjudicator did not think AK would still target the applicant after so many years. He found internal relocation was viable in the applicant’s case.

28. The adjudicator found there was no real torture risk, persecution risk, CIDTP risk (BOR 3 risk) or life risk (BOR 2 risk) that warranted non-refoulement protection. He refused the applicant’s claim with respect to all the four applicable grounds.’

5)  Decision of DHCJ Josiah Lam

5.1  DHCJ Josiah Lam on 30 July 2018 refused to grant leave to the applicant for judicial review.

5.2  The Judge, after consideration of the case with rigorous examination and anxious scrutiny, found that the applicant’s appeal against the Board on three main areas of complaint were not made out.

5.3  The Judge found that the applicant’s complaint that the Director’s Decision came out late was unjustified.  The applicant had no basis to allege that he was, as a result, hindered in retrieving proof of documents in India.

5.4  The Judge found that there was no lateness in the Director delivering hearing bundles to the applicant before the Board hearing.  The Judge found that the Director followed the ‘Practice and Procedure Guide of the Administrative Non‑refoulement Claims Petition Scheme’.  He further found that most documents contained in the hearing bundles were seen by the applicant, or submitted by the applicant during his screening, and he held that ‘the Applicant’s case was not complicated and there was no evidence to show the appeal bundle was difficult or voluminous’.

5.5  The Judge found that the applicant had exaggerated his problem of understanding and handling English documents.  The Judge found that there was no evidence to show that the applicant genuinely needed more time to deal with the appeal documents.  He did not apply for an adjournment, nor was there evidence that he was confused as to what was happening before the Board.

5.6  There were other vague complaints from the applicant that had been considered by the Judge and was rejected by him.

5.7  The applicant filed his Notice of Appeal to the Court of Appeal on 2 August 2018.

6)     Notice of Appeal

6.1  The Notice of Appeal contains brief statements of complaints with no explanation, supporting reasons or arguments that focus on what it was that was in error in the Decision of DHCJ Josiah Lam.

6.2  In essence, the Notice of Appeal contains the following grounds by the applicant :

(1)  The applicant is always thinking about his family. He considers himself to be in mental pain, and he always fears there is risk in returning to India (‘Risk argument’);

(2)  The applicant repeats his case that AK attacked him two times and tried to kill him.  These were alleged by the applicant as ‘real facts’ (‘AK argument’);

(3)  The Judge did not consider ‘political and personal violence’ (‘State acquiescence argument’);

(4)  The applicant repeats his position on his level of English knowledge and the submission of documents (‘level of English knowledge argument’).

7)  The Applicant’s Skeleton Submissions

7.  The applicant’s skeleton submissions lodged out of time contained the following arguments against the decision of DHCJ Josiah Lam :

(1)  The Judge erred by stating that ‘the applicant should not seek judicial review against the director decision’;

(2)  The Director’s Decision found that there is risk of the applicant returning to his home country, but the decision was still to repatriate the applicant;

(3)  Recently, the applicant received news from his brother that AK was still looking for him;

(4)  AK is politically influential;

(5)  Other miscellaneous arguments such as that the applicant was unrepresented, that the Judge erred in not considering his present situation, and that the applicant cites certain reference without elaboration.

8)     The Legal Position

8.  It is pertinent to restate the legal position set out in Nupur Mst [2018] HKCA 524 as follows :

‘ 14(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 the 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 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 of relevant matters already placed before the court or was otherwise plainly wrong.

(3)   It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489.

(4)   In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(5)   Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6)   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. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).’

9)     Risk argument, AK argument, State acquiescence argument, level of English knowledge argument                                  

9.1  We are of the view that the applicant’s appeal is without merits.

9.2  The applicant’s arguments that: (1) there is a real risk of torture upon return; (2) that he has been attacked two times by AK; (3) state acquiescence and (4) his level of English knowledge have already been dealt with by the Board.  It is trite that the primary decision makers are the Director and the Board.  The Court will not usurp the role of these bodies.  The applicant’s grounds of appeal are all within the province of the Board (and the Director).  The applicant has not shown that there are any legal errors in either decision.  He simply regurgitated arguments advanced before. 

10)  Skeleton Submissions

10.  The applicant’s skeleton submissions do not show any legal error of the Judge.  The applicant attempted to rely on information coming from his brother.  The applicant regurgitates substantive arguments that have already been dealt with by the Director and/or the Board.  No merits can be found in the applicant’s skeleton submissions lodged out of time.

11)   Disposition

11.1  It has not been shown that there is any error of law or procedure in the proceedings before the Board or the Director.  There is no reasonably arguable basis to challenge the fairness of the process.  DHCJ Josiah Lam was correct to refuse to grant leave to apply for judicial review.

11.2  There is no prospect of success in the intended application for judicial review and the appeal is dismissed accordingly.