MOHAMMED HAFIZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 444/2019

[2020] HKCA 369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 444 OF 2019

(ON APPEAL FROM HCAL NO 1678 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

1.1.  This is an appeal by Mr. Mohammed Hafiz (“the appellant”) from an order of DHCJ Woodcock (“the Judge”) given on 20 September 2019 dismissing his application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in the Judge’s observations set out in a document referred to as “CALL-1” (“the Judge’s Decision”)[1].    

1.2.  The appellant had applied to the Judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 13 August 2018 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s Decision (defined in [7.2] below) was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of India now aged 40.  On 26 September 2003, the appellant entered Hong Kong as a visitor.  He overstayed and was arrested by the police on 18 November 2007.  He was released on recognizance on 6 December 2007.  On 18 November 2009, he was arrested for burglary and was sentenced to prison on 17 May 2010.  On 10 December 2012, he was arrested for using another person’s identity card and was sentenced to prison again on 24 January 2013.  He raised a torture claim which was dismissed on 12 March 2012.  On 28 March 2012, he lodged a petition to appeal which was dismissed by the Adjudicator (Torture Petitions). Subsequently, he raised a claim for non-refoulement which was rejected by the Director of Immigration.  This was followed by the dismissal of his petition by the TCAB. 

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision (defined in [7.2] below) and in gist in the Judge’s Decision.  Put briefly, what he alleged was that:

-  The appellant borrowed 500,000 Indian Rupees from MH who was a supporter of the Congress Party.  The loan was for purchasing goods in Hong Kong but he was cheated by an agent and lost the money. 

-  The appellant was unable to repay the loan.  From 2003 to 2011, MH and his men went to his family home about 8 - 10 times a month and demanded repayment threatening to kill the appellant.  They also threatened the appellant’s family by phone about once or twice a month.  His family had moved to another place in 2010 in order to avoid these threats.  His family did not report the threats to the police because MH had good connections with the police. 

-  The appellant alleged that he was set up by KA in Hong Kong for burglary on 28 October 2009.  He claimed an inmate at Lai Chi Kok Reception Centre later told him KA is MH’s relative. 

-  Meanwhile in India, MH continued to send his men to the appellant’s home to demand for repayment.  MH also wanted to marry the appellant’s sister in settlement of the loan. 

-  The appellant was told by his mother that MH was elected as a councillor of their area in April 2015, so he became more influential.

-  The appellant did not consider that state protection and internal relocation are viable options for him because MH has a strong connection with the Congress Party, which is a powerful party in India, and the Indian authorities are corrupt.  MH would be able to locate him if he returned to India. 

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks if he returned to the India: “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.  What is often referred to as “BOR 3 risk” (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.  “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.  “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.  What is often referred to as “BOR 2 risk” (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance Cap.383) is the risk of violation of the right to life.

The Director’s Decision

6.  The Immigration Department had previously dismissed the appellant’s torture claim on 12 March 2012.  Upon receipt of the appellant’s supplementary non-refoulement claim form dated 29 May 2015, the Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director rejected the appellant’s claim for reasons set out in the Notice of Decision and Notice of Further Decision given 27 August 2015 and 9 December 2016 respectively.  The former decision was in relation to the “BOR 3 risk” and “persecution risk”, and the second decision covered the “BOR 2 risk”.

The TCAB’s Decision

7.1.  The appellant appealed to the TCAB which held a hearing at which the appellant was present but he did not give evidence. 

7.2.  The TCAB reviewed the evidence of the appellant in detail.  The TCAB dismissed the appeal (“the TCAB’s Decision”).  The TCAB found that the information provided by the appellant in the questionnaire and the interview report about the loan were inconsistent ([11]).  The TCAB also found that the appellant’s allegations about the threats from MH and the set up by KA in Hong Kong were incredible ([18], [20], [27]).  Upon assessing the evidence, the TCAB did not consider that the appellant faced a real risk of harm from MH or KA as neither of them had physically harmed the appellant.  Throughout all these years, MH had not sent people to Hong Kong to look for him even though KA knew where the appellant lived.  The TCAB concluded that MH and KA had no intention to do any serious harm to him or to kill him at all ([29]-[31]). 

7.3.  The TCAB considered the country of origin information which showed that reasonable state protection and internal relocation options are available to the appellant ([37]-[38]).     

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  However, he did not set out any grounds either in the Form 86 or by way of affirmation.

The Judge’s Decision

9.  The appellant did not request for an oral hearing, so his leave application was disposed of on paper.  As mentioned earlier, the Judge refused leave for the reasons set out in [10] - [12] of the Form CALL-1 ([2019] HKCFI 2147):

10.  The applicant has sought leave to judicial review the decision of the TCAB. He has filed an affirmation in support but it does not contain any grounds. A reading of the adjudicator’s decision makes it clear that he reconsidered the applicant’s evidence without the benefit of the applicant electing to give evidence during the appeal. It is clear that he found reasons to reject his evidence and find him unreliable. He nonetheless, did apply the law and key legal principles to the evidence on the basis that it was credible and still concluded that the appeal should be dismissed.

11.  I have considered the adjudicator’s decision with rigorous examination and anxious scrutiny as required.  I see no fault in the adjudicator’s decision‑making process.  I do not see any error of law made by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

12.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Appeal to Court of Appeal

10  By a Notice of Appeal filed on 23 September 2019, the appellant appealed the Judge’s order to this court.  He stated the following in his Notice of Appeal:

“In the matter of Order 53 rule 3, that it is ordered the leave to apply for Judicial Review be refused. I would like to appeal again in your Honour’s Court that I cannot go back in my country because my life is in danger.”

Legal Principles

11  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1  The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and we will not repeat them here.

11.3  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Submissions

12.1  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed his skeleton submissions on 16 January 2020 submitting that high standards of fairness are required for making a decision by the decision maker.  The appellant cited various authorities including ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and argued that high standards of fairness should be applied because his life is in jeopardy and the decision has the effect of finally disposing of his claim and making him liable to be removed.  He also argued that the TCAB acted in a procedurally unfair manner without assessing his credibility properly, and the TCAB Decision should be set aside as it is unreasonable.

12.2  At the hearing before this court, the appellant alleged orally that his brother had been killed by the people who had lent him (the appellant) money and his sister has also gone missing.  He said this occurred 2 and a half months ago.  This was the first time that such an allegation has been made.  However, there was no affirmation or other evidence in support of this allegation.  Accordingly, the court informed him that this was not a matter that this court would deal with, and it was up to him to make a fresh application based on change of circumstances if he had evidence in support. 

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

13.1  The appellant’s grounds of appeal are not valid.  His argument regarding the TCAB Decision is vague and unspecified.  He did not raise any grounds of judicial review before the Judge and has not identified any error by the Judge.  The Judge had considered the TCAB’s Decision, and found no procedural unfairness or error of law. 

13.2  The TCAB dismissed the appellant’s claim because his claim was incredible.  The Judge was entitled to rely on the TCAB’s reasoned evaluation of the risk of harm to conclude that his claim had no reasonable prospect of success.  

14.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.