RE RAHMAN SAJID

CACV 433/2018

[2019] HKCA 284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 433 OF 2018

(ON APPEAL FROM HCAL 127/2018)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) dated 23 August 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 1895, refusing leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 18 January 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 June 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered into Hong Kong on 15 December 2013 and was permitted to remain as a visitor until 29 December 2013.  However, he overstayed from 30 December 2013 and was arrested by the police on 2 March 2014.  Immediately after the arrest, he lodged a non-refoulement claim on 4 March 2014. 

3.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 6 of the Director’s Decision, and paragraphs 2 and 11 - 39 of the Board’s Decision.

4.  Briefly stated, the applicant claimed that if he were to return to India, he would be harmed or killed by Abdul Qadir (“Abdul”), a loan shark, because the applicant was unable to repay Abdul 3.5 million Indian rupees.  He also claimed that he would be arrested by the Indian police because he had absconded from court bail in a 2001 gold-smuggling case in the High Court.  He further claimed that as a beef eating Muslim, he would be killed by the ruling party, Bhartiya Janata Party (“BJP”), because BJP is against beef-eating and Muslims and he would receive death penalty because the new Maharashtra law bans cow slaughter, beef distribution and consumption.

The Director and the Board’s Decisions

5.  In the Director’s Decision, the Director assessed the torture risk^[1], the BOR 2 risk^[2], the BOR 3 risk^[3] and the persecution risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker because, inter alia, the level of risk of harm against the applicant was low since the alleged situation with Abdul was only a private dispute and had nothing to do with the state or politics (paragraphs 14 - 18 of the Director’s Decision).  Further, the Director considered the country‑of‑origin information (“COI”) and was of the view that reasonable state protection was available to the applicant (paragraphs 19 - 26 of the Director’s Decision).  Thus, the Director rejected the applicant’s claim.

6.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 25 October 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

7.  Although the Board attached credence to the facts that the applicant had jumped bail from his 2001 smuggling case and that he might have borrowed money from Abdul and Abdul might have threatened to kill him, the Board refused to accept that Abdul was determined to kill the applicant or powerful enough to locate the applicant anywhere in India (paragraphs 79 - 86 of the Board’s Decision).  The Board also refused to accept that the applicant would be killed for eating beef in India (paragraph 81 of the Board’s Decision).

The Deputy Judge’s Decision

8.  The applicant filed a Form 86 on 26 January 2018 seeking leave to apply for judicial review against the Board’s Decision.  He also filed a supporting affirmation on the same day.  In his supporting affirmation, the applicant listed eight grounds of judicial review to challenge the Board’s Decision, which were summarized by the Deputy Judge in the Deputy Judge’s Decision as follows:

“27. In his affirmation, the applicant complained the adjudicator failed to carry out sufficient research and inquiry of relevant COI; failed to consider relevant and updated COI; placed weight on irrelevant COI; relied on outdated COI or outdated cases; relied on information not officially recognised or simply hearsay; took into account irrelevant/incorrect information or facts; ignored facts/inferences favourable to him; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violation of human rights; failed to call for psychological and psychiatric reports; failed to properly consider the issue of state protection and state acquiescence; misdirected in law; applied the wrong standard of proof; rendered unreasonable/irrational decisions; acted in a procedurally unfair manner.”

9.  The Deputy Judge heard the applicant’s leave application on 19 June 2018.  At the hearing, the applicant confirmed that the grounds for judicial review were as stated in Form 86 and his supporting affirmation, and had nothing to add.

10.  Having considered the documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 34 - 49 of the Deputy Judge’s Decision:

34.   Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

35.   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’.

36.   The Applicant complained he had not been given sufficient legal assistance. He had been represented by the Duty Lawyer Service up to the Director’s decision rendered on 15 June 2017.

37.   There is no evidence that the Applicant had reapplied for Duty Lawyer assistance for appeal to the Board.

38.   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 failed to show this court how his claim was prejudiced or undermined by the lack of legal representation only in the later stages of his claim.

39.   The Applicant complained he was only given the appeal bundle a few days before the Board hearing.

40.   According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, 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.

41.   The Director confirmed in his letter dated 20 June 2018 that the bundle was served on the Applicant on 18 October 2017. The appeal hearing took place before the Adjudicator on 25 October 2017. The bundle was served 7 calendar days (or 6 working days) prior to the appeal hearing. It was served on time.

42.   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 case was not difficult and there was no evidence to show the appeal bundle was difficult or voluminous. The Applicant signed to acknowledge he understood what the interpreter had read to him of the bundle index and skeleton submissions of the Director on 18 October 2017.

43.   In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application for leave for judicial review. I am sure the Applicant had access to language assistance at all material times if he so wanted. He certainly had exaggerated his problem of understanding and handling English documents.

44.   A few days certainly were 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 the appeal.

45.   There is no evidence to show the Applicant had complained to the Adjudicator that he was short of time for preparation or he was confused. The Applicant gave evidence before the Adjudicator and had not requested for adjournment. I do not accept the Applicant had no sufficient time to prepare for the appeal or that he was confused of what happened.

46.   I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator 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 he was acquainted with the facts and applied the law correctly. He considered the Applicant’s case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

47.   The Director is an interested party. I have also reviewed his decision under ‘rigorous examination and anxious scrutiny’. It is wrong for the Applicant to accuse the Director had not screened his claim with respect to BOR2 risk. The Director’s decision dated 15 June 2017 was related to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).

48.   What has been said of the Adjudicator in paragraph 46 above is also true of the Director. The Director’s findings, conclusions and decisions were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. He had also achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

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.”

Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 3 September 2018 to appeal the Deputy Judge’s Decision. He set out the following two grounds of appeal in his supporting affirmation:

(1)   The Deputy Judge was wrong in law in holding that there was no state acquiescence or involvement (“the 1^st ground of appeal”).

(2)   The Deputy Judge failed to provide detailed reason in support of his decision (“the 2^nd ground of appeal”).

12.  In purported support of the appeal, the applicant also referred in this affirmation to an exhibit A to explain “some of the reasons for this application”.  Exhibit A is a 35-page document in which the applicant repeated his personal background and the basis of his non-refoulment claim.  He cited various legal authorities and listed “Nine grounds of judicial review” challenging the Adjudicator’s decision (ie, the Board’s Decision”).

Discussion

13.  At this hearing, the applicant confirms the above grounds of appeal, and that he has nothing to add.  He repeats and emphasizes again that it will be unsafe for him to return to India and he will be harmed.

14.  Before considering the merits of the grounds of appeal, it is worth repeating the following now well-established principles.

15.  First, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  The primary decision maker to consider whether there was state acquiescence or involvement is the Director and the Board.  The court would and should not usurp the role of the Director or the Board and will only intervene if public law grounds for doing so are established.  See: Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; and Re Masoom Parvez [2018] HKCA 163.

16.  Second, 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 Deputy Judge if it could be demonstrated that there were errors in law, that the Deputy Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

17.  Insofar as the 1^st ground of appeal is concerned, in both the Director’s Decision and the Board’s Decision, state acquiescence or involvement was fully considered by the Director and the Board.  The Director and the Board found that there was no state acquiescence or involvement and state protection was available to the applicant (paragraphs 22 - 26 of the Director’s Decision and paragraph 86 of the Board’s Decision).  They concluded that there was no scope for finding risk of torture based on the concept of state acquiescence or involvement.

18.  The Deputy Judge in his decision had carefully examined the Board’s and the Director’s Decisions and concluded that their decisions did not commit any public law errors, in that: their decisions did not make any errors of law, were not tainted with any procedural unfairness, and were not Wednesbury unreasonable; and the Director and the Board had also achieved the high standards of fairness required for assessing applicant’s non-refoulement claim.

19.  Other than making a general and vague complaint that the Deputy Judge was wrong, the applicant has not in this appeal identified specifically what are the errors committed by the Judge in his reasons.

20.  This is therefore not a valid basis which can show that the Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.

21.  There are no merits in this ground of appeal.

22.  As to the 2^nd ground of appeal, it is clear from the Deputy Judge’s Decision that he has provided detailed reasons for his conclusion (paragraphs 34 - 49 of the Deputy Judge’s Decision).  This ground of appeal is also entirely unmeritorious.

23.  In his skeleton argument dated 5 November 2018, for the 1^st ground of appeal, the applicant quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  For the 2^nd ground of appeal, the applicant quoted The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 on the decision maker’s “duty to act fairly.”

24.  These however are related to complaints directed at the Director and the Board, which had been properly addressed by the Judge in his reasons.  As mentioned above, the applicant has not identified anything in this appeal to demonstrate why the Judge was wrong in his reasons.  These authorities therefore do not assist the applicant in this appeal.

25.  Finally, in relation to the nine grounds of judicial review stated in his supporting affirmation for the Notice of Appeal, these are all complaints made against the Board’s Decision.  Those complaints again do not identify any error in the Deputy Judge’s Decision.

26.  In any event, we have reviewed the decisions of the Board and of the Judge and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s decision.

Disposition

27.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.