RE ALI AKBAR

CACV 432 /2023, [2025] HKCA 124

On appeal from [2023] HKCFI 3283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 432 OF 2023

(ON APPEAL FROM HCAL NO. 2173 OF 2020)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 14 December 2023[1] refusing to give him leave to judicially review the decision the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decision of the Director of Immigration (“the Director”)  which rejected his non-refoulement protection claim.

2.  Despite directions given by the Court, the applicant did not lodge any written submission to support his appeal.  He had consented to the Court of Appeal disposing of his appeal on the papers without an oral hearing.  

The applicant’s claim

3.  The applicant is an Indian aged 42.  He last entered Hong Kong on 3 September 2012 and was given permission to remain as a visitor for 14 days.  He overstayed, and was arrested by the police on 23 October 2012.  He lodged a torture claim[2] which was refused by the Director on 15 March 2013.  His appeal was rejected by the Board on 2 May 2013.  Upon the commencement of the Unified Screening Mechanism, he made a non-refoulement claim on 18 April 2014. 

4.  The applicant’s claim is based on fear of being harmed or killed by the members of a political party which the applicant called CPM (as he could not recall its full name)  because of his affiliation with the rival party, Trin Mul Congress (“TMC”), and fear that he would be arrested and prosecuted for a false murder charge.  His claim was set out in detail in [12] of the Director’s decision and summarized by the Judge in [5] to [11] of the Form CALL-1:

“5. The Applicant, now aged 42, was born in Kolkata, West Bengal, India. He had not received any education. He had worked as a salesman, a vegetable trader, a wood supplier, a garment trader and a worker. In 2004, he and his brother along with three others supported CPM which promised them government jobs. The promise never materialised. In 2007, they switched to support TMC which also promised jobs to its supporters. They supported TMC for two to three years. As a result, the Applicant became a target of CPM.

6. Between 6 and 7 pm on an unknown evening in 2008, while the Applicant and his brother were chatting in a street junction, five to six CPM members armed with knives and revolvers approached. They asked the Applicant to re-join CPM for four to five times. When the Applicant refused for the last time, he and his brother were violently attacked by the CPM members. They sustained multiple cuts. The Applicant was hospitalised for about 10 days. A police report was made but was dismissed as a mere political party dispute with no further action being taken.

7. In the same year, the Applicant’s three brothers were charged with possession of illegal firearms and large knives on the basis of false accusations brought by CPM. They were sentenced to single or multiple terms of imprisonment of between one and half months to five months.

8. In 2009 or 2010, the Applicant established a Freedom Welfare Centre (“Centre”)  to assist the poor in their neighbourhood. Its success attracted TMC. TMC leaders visited the Centre and endorsed the work of the Centre. The success of the Centre increased the popularity of TMC. CPM was displeased with the success of the Centre. It demolished the Centre in March 2012 and assaulted the Applicant’s mother during the course of the demolition.

9. In March 2012, a CPM member, Lal, was shot to death. Upon learning that the police were looking for him in relation to the murder, the Applicant fled to Bihar, then to Bangalore, and eventually arrived at Hong Kong by air on 3 September 2012.

10. While he was in Bangalore, the Applicant learnt that his home, his sister’s home, his fiancée’s home and the Centre were all demolished by CPM members. After coming to Hong Kong, he learnt that the police had refused his mother’s application to rebuild his home. He believed CPM had bribed the police. Lal’s family had also threatened to kill his brother if he rebuilt his family’s house. He also learnt that six TMC members had been detained in Central Jail for the murder of Lal for six years and the murder was still under investigation. He feared that if he returned to India, he would be held in custody for the murder of Lal as well.

11.  The predicament faced by him and his brother has put his family through mental distress to the point that his father passed away due to the pressure and his mother fell ill due to constant worry.  As he is wanted for a serious crime in India, he believes internal relocation within India is impossible.”   

The Director’s and the Board’s decisions

5.  By a Notice of Decision dated 13 September 2018, the Director rejected the applicant’s non-refoulement claim having regard to the BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5], but not the torture risk[6] ground in view of the previous rejection of his torture claim.

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 5 June 2020, during which the applicant gave evidence and answered questions from the Board.  By a decision given on 23 October 2018, the Board dismissed the appeal.  

7.  In a detailed and meticulous decision, the Board found the applicant’s evidence full of inconsistencies and incredible in a number of respects.  The Board found that the applicant fabricated his case, and there was no credible evidence to support his claim for protection.  The Board’s deliberation and findings on the credibility of the applicant’s evidence were summarized by the Judge in [13] to [18] of the Form CALL-1.  The Board further found that, even if the applicant’s evidence were accepted, his claim did not satisfy the requirements of the applicable grounds.  The Board concluded that the applicant failed to prove his entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.  The applicant filed a Form 86 and an affirmation on 20 November 2020 to seek leave to apply for judicial review against the decision of the Board.  The Form 86 did not contain any ground for seeking relief.  In the supporting affirmation, the applicant stated that his danger had been ignored and his life would be in danger as his enemies were very powerful.  Specifically, he complained that the Board failed to take into account all the evidence, in particular his medical reports which supported the injuries he claimed to have suffered. 

9.  The Judge heard the application at an oral hearing held on 20 November 2023.  By a Form CALL-1 dated 14 December 2023, he dismissed the application. 

10.  In gist, the Judge noted that the Board did not appear to have considered the medical certificates and hospital discharge documents produced by the applicant.  However, for the reasons set out in [25] and [26] of the Form CALL-1, the Judge held that this omission did not affect the Board’s findings on the credibility of the applicant’s evidence, and its assessment of the severity of the applicant’s injuries.  Importantly, the Judge pointed out that the Board had made an alternative finding based on the applicant’s evidence, which was a mixed question of fact and law.  The Judge held that there was no proper basis to disturb the Judge’s alternative finding that the applicant’s claim did not come within the ambit of the applicable grounds.  The Judge concluded that leave to apply for judicial review should be refused as the intended judicial review had no realistic prospect of success.

The appeal

11.  By a notice of appeal dated 27 December 2023, the applicant appealed the Judge’s decision to this court. 

12.  The grounds of appeal in the notice of appeal stated that: (1)  the Director, the Board and the Judge failed to take into account the applicant’s argument; (2)  the Director and the Board failed to have regard to the gravity of the applicant’s circumstances; (3)  the decisions of the Director and the Board are unfair as they approached the applicant’s claim in a “defensive mode”; (4)  their decisions are unreasonable as the Country of Origin Information relied on by the Director and the Board were all from websites and do not reflect the situation in real life; (5)  the Director and the Board ignored many parts of the applicant’s case, and did not tell the applicant what proofs they wanted; (6)  the Judge was wrong as a matter of law for not having applied the principle of irrationality to the Director’s decision; (7)  torture and deaths in police custody are common in India as the police only support those who bribe them; and (8)  the applicant cannot return to India at the present stage.  He asks to be allowed to remain in Hong Kong until his problem is solved. 

Our reasons for decision

13.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, 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 Country of Origin Information 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.

14.  In our view, the grounds of appeal in the notice of appeal are not viable or arguable.  Firstly, they are all vague and general assertions and are unsupported by particulars.  Secondly, they do not engage or relate to the analysis and reasons given by the Judge for refusing the leave application. Thirdly, the applicant has failed to identify specific error in the Judge’s very full and careful reasoning. 

15.  We have considered the Board’s decision and the Judge’s decision.  Like the Judge, we are of the view that the Board’s finding that, even if the applicant’s evidence were accepted, the applicant’s claim did not satisfy the requirements of the applicable grounds cannot be faulted.  There is also no error of law, irrationality or procedural unfairness in the Board’s decision. We agree with the Judge that the intended judicial review has no reasonable prospect of success.

16.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.