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CACV 503/2018
[2019] HKCA 181
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 503 OF 2018
(ON APPEAL FROM HCAL NO 354 OF 2018)
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BETWEEN
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MOHAMMED ZAHID QAMAR |
Applicant |
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and
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TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
and
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Putative Respondent |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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| Before: |
Hon Barma, Poon JJA and L Wong J in Court |
| Date of Hearing: |
12 February 2019 |
| Date of Judgment: |
18 February 2019 |
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J U D G M E N T
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Hon Poon JA (giving the Judgment of the Court) :
1. This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 24 September 2018, refusing to grant the applicant leave for judicial review.
BACKGROUND
2. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2124. We shall not repeat the same here.
3. Briefly stated, the applicant is a national of India. He first came to Hong Kong as a visitor in 2002, he overstayed and was arrested by the police on 30 May 2002. He left Hong Kong later. Between 2006 and 2016, the applicant travelled on a number of occasions between Hong Kong and India. On 29 June 2016, he entered Hong Kong as a visitor again and was allowed to stay until 13 July 2016. He did not depart and surrendered to the Immigration Department on 14 July 2016. On the same day, he lodged his non-refoulement claim. His claim was based on his fear of being harmed, or even killed, by his creditor named Rakesh Singh (“RS”) because of his default in loan repayment.
4. By a Notice of Decision dated 15 December 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.
5. The applicant then appealed to the Torture Claims Appeal Board (“the Board”). After the hearing on 10 January 2018, the Board dismissed the appeal on 1 March 2018. The Board found at [41] to [45] of its decision that after careful consideration of the applicant’s oral and written evidence, there were considerable doubts as to the truthfulness of the applicant’s claim. The Board accepted that the applicant had borrowed money from RS, who might be a “loan shark” of some kind who had political connections, however, the applicant’s account of events on being chased for repayment and severely assaulted by RS was inconsistent and confused. The Board took the view that should the applicant genuinely have feared harm in India, he would not have returned home on two to three occasions following the alleged assaults and threats from RS. The Board found that the applicant’s travels between Hong Kong and India were for the purpose of his business and he finally decided to remain in Hong Kong and thus fabricated his non-refoulement protection claim. In any event, the Board found reasonable state protection and internal relocation were available to the applicant. Based on the above findings, the Board was not satisfied that the applicant had a genuine fear or risk of harm if refouled and the applicant had failed to establish his non-refoulement claim under all applicable grounds.
THE JUDGE’S DECISION
6. The intended application for judicial review was in respect of the Board’s decision. The Form 86 filed on 6 March 2018 provided the following grounds :
(1) The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that he did not satisfy the requirement for non-refoulement protection;
(2) The Board had acted in a procedurally unfair manner in dealing with the applicant’s appeal;
(3) The Board’s dismissal of the applicant’s appeal was unfair, unreasonable and irrational and there were procedural errors in its decision;
(4) The Board failed to meet the greater care and duty owed to the applicant as a self-represented litigant.
7. On 24 September 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review. In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [36] – [49] for his refusal to grant leave :
“ Discussion
36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
37. 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’.[1] Neverthesless, it is stated in Re Islam Rafiqul that “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.”[2]
38. The Applicant complained he received the appeal bundle only on or about 3January 2018 before the Board hearing scheduled for 10 January 2018.
39. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[3] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[4], 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.
40. The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.
41. 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 claim was not difficult. There was no evidence to show the appeal bundle was voluminous or difficult.
42. A few days certainly was 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. There was no evidence to show the Applicant had complained to the Adjudicator or asked for adjournment during the appeal hearing. There was also no evidence to show the Applicant was confused as to what happened in the appeal. The Applicant said in his affirmation that he answered all the questions honestly.[5] That would mean he knew well what was asked of him and he answered at will. The Applicant was not confused.
43. The Applicant raised his language problem. He was a university graduate in India. The Applicant admitted he had to read English in the university but his English was not very good and still required language assistance. He said a friend helped him to prepare Form 86 and the affirmation for the current application.
44. Apparently, the Applicant knew some English and he could also find someone to assist him with interpretation/translation and dealing with English documents. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.
45. The Applicant mentioned he was not legally represented for the appeal. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 15 December 2016. There was no evidence to show the Applicant had re-applied for legal assistance from the Duty Lawyer Service afterwards.
46. 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 also failed to show this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
47. The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that. The Applicant also failed to point out the specifics.
48. There are other vague complaints by the Applicant. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. She 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’s report showed she was acquainted with the facts of the Applicant's case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
49. 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 the review.”
THE APPEAL
8. The applicant filed the Notice of Appeal on 5 October 2018 in which he set out the following ground of appeal :
“ The plaintiff (applicant) will face hardship if he is to return back to his home country and that the Torture Claims Appeal 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.”
9. In the skeleton submissions lodged by the applicant on 7 December 2018, he complained that the Board’s decision had significant impact on his right of non-refoulement protection that might make him liable to be removed eventually.
10. We heard the appeal on 12 February 2019. The applicant added nothing to his written submissions.
DISCUSSION
11. The ground of appeal alleges that the applicant will face hardship if the applicant is to return to India, and the Board had relied on hearsay evidence or news from source not officially recognized and fairly outdated cases. It further alleges that the Board’s lack of credible source of information resulted in its making groundless speculations that it was safe for him to return to India.
12. As this Court has repeatedly said, in an appeal of this nature, the Court focuses on examining the correctness of the Judge’s refusal of leave in the light of the grounds of appeal advanced by the applicant in the notice of appeal, see: Re Shrestha Santosh Kumar [2018] HKCA 583. If no viable ground is put forward to reverse the Judge’s decision, 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 leave to apply for judicial review. We see no merit in the ground of appeal put forward by the applicant in this appeal as it does not identify any error in the Judge’s decision.
13. In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the Judge, are justified. We do not see any errors of law or procedure in the proceedings before the Board. Nor is there any reasonably arguable basis to challenge the fairness of the process. Determination of the merits of a non-refoulement claim is essentially a matter for the Board, not for the court. We do not see any reasonable basis to upset the decision of the Board by way of judicial review. In any event, the complaints in the ground of appeal had been rejected by the Judge. We agree with the Judge’s finding at [47] of the CALL-1 form that the applicant’s case lacks particulars and is devoid of merit. The Judge was correct in refusing the applicant leave to apply for judicial review.
14. For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.
| (Aarif Barma) |
(Jeremy Poon) |
(Lisa Wong) |
Justice of Appeal
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Justice of Appeal
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Judge of the Court
of First Instance |
The applicant, unrepresented, appeared in person
[1] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[2] CACV 219/2018 [2018] HKCA 570, para 14(1).
[3] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[4] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[5] The Applicant's affirmation, Point 8 on page 4.
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