RE HOSSAIN AFZAL

CACV 21 /2019

[2019] HKCA 519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 21 OF 2019

(ON APPEAL FROM HCAL NO 612 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1)   The appeal

1.   This is an appeal by the Applicant against the decision of Deputy High Court Judge Josiah Lam (‘Judge’) given on 9 January 2019 in which he refused to grant leave to the Applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

2)   Factual background

2.1   The Applicant is a national of India.  He last arrived in Hong Kong on 1 February 2015 and overstayed.  On 26 May 2015, he filed his non-refoulement claim.

2.2   The basis of the Applicants’ claim is that if he was refouled back to India he would be harmed or killed by a moneylender called Sheikh.

2.3   The background facts have been summarized in the decision of the Judge at [1]-[12].

3)  The Director’s Decision

3.1   The Director decided against the Applicants’ torture claim on 3 April 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’) as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).  

4)  The Board’s Decision

4.1   The Applicants appealed against the Director’s Decision to the Board on 13 April 2017.  After a hearing held on 8 March 2018, the Board dismissed the Applicant’s appeal on 29 March 2018 (‘the Board’s Decision’).

4.2   After an assessment of the Applicant’s case, the Adjudicator found that the Applicant had been to Hong Kong three times between July 2014 and November 2014.  This was not consistent with the Applicant’s allegation that he was hiding at his aunt’s place during the same time from Sheikh.  The adjudicator found that the Applicant did not apply for non-refoulement at the first available opportunity.  The Applicant alleged that he wanted to wait and see.  The Adjudicator did not find the Applicant credible.  The Adjudicator found that even on the Applicant’s own account of events, there was no torture risk, persecution risk, BOR 2 or BOR 3 risks.  Internal relocation was possible.

5)  Decision of the Judge

5.   The Judge assessed the Applicants’ application for leave for judicial review.  He stated the legal position that 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.  He found that the Court of Appeal has repeatedly stated that high standards of fairness does not prescribe a non-refoulement claimant an absolute right to free legal representation at all stages of the proceedings.  The Judge found that the Applicants’ complaint about language problem was without merit, as the Applicant either had access to friends who could help with his language understanding, or he had the assistance of an interpreter while he was legally represented, or being before the Director or the Board. The Judge found that there was no delay in the delivery of bundles to the Applicant. The Judge found that there was no evidence on the Applicant’s complaint about “outdated cases” or “information not officially recognized or simply hearsay”.

6)  Grounds of appeal

6.1   The Applicant in the Notice of Appeal filed on 15^th January 2019 stated that he will suffer hardship if he is returned to his home country without explaining why.  Again, he stated that the Board has significantly relied on source of news which is not officially recognized or simply hearsay, without an appreciation that the essence of the Board’s rejection of his case was based on his lack of credibility.  He complained again that the cases used (by the Board) were outdated without explaining how they were outdated.  

6.2   The Applicant’s skeleton submissions lodged on 26 February 2019 and 26 March 2019 also lacked specificity.  It repeated various broad and vague legal positions for non-refoulement cases such as “a high standard of fairness”, or that the court must assess with “rigorous examination and anxious scrutiny”, or that the court must give the Applicant “every reasonable opportunity” to establish his claim.  The Applicant simply stated legal positions.  There was no specifics or elaboration on the application of those principles.

7)  Our view

7.1   We are of the view that the Applicants’ appeal is without merits.  The Applicants provided no reasonably arguable grounds for judicial review.  Many of the grounds of appeal have been considered by the Judge below.  The Applicant provided no specifics or elaboration on what were his grounds of appeal.  An appeal against refusal of leave for judicial review is not an occasion for the Applicants to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or that the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

7.2   Accordingly, the appeal is dismissed