Bala Biswajit v. Torture Claims Appeal Board /Non Refoulement Claims Petition Office

CACV 37/2019

[2019] HKCA 511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 37 OF 2019

(ON APPEAL FROM HCAL NO 736 OF 2018)

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BETWEEN

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Before: Hon Yeung Ag CJHC, Poon and Pang JJA

Date of Judgment: 9 May 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) :

INTRODUCTION

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) on 15 January 2019, refusing to grant the applicant leave for judicial review.

2.Pursuant to the Order made by Master Au Yeung on 15 February 2019, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 30 April 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

BACKGROUIND

3.The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 108.  We shall not repeat the same here.

4.Briefly stated, the applicant is a national of India.  He entered Hong illegally 5 December 2012 and was arrested by the police on 22 March 2013.  On 3 June 2014, he lodged his non-refoulement claim. His claim was based on his fear of being harmed, or even killed, by local leaders, namely Khokon and Chandu of the All India Trinamool Congress (“TMC”) as the applicant was the supporter of rival Communist Party of India Marxist (“CPI(M)”).  Khokon and Chandu also requested the applicant for extortion money as party fund of TMC and threatened to kill him if he did not pay.

5.By a Notice of Decision dated 22 July 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By a Notice of Further Decision dated 6 July 2017, the Director rejected his claim on BOR 2 risk.

6.The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 12 March 2018, the Board dismissed the appeal on 9 April 2018.  The Board found that the applicant’s evidence was confused, evasive and inconsistent with his written evidence in the non-refoulemnet claim form.  The Board did not find him a truthful witness and rejected his case that he had ever borrowed money from money lenders nor did he face any real risk of harm from members of TMC for his failure to pay extortion money.  The applicant’s claim on non-refoulement protection was dismissed on all applicable grounds.

THE JUDGE’S DECISION

7.On 26 April 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  The applicant put forward the following grounds for his intended challenge :

(1)  the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the Adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  the Board’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness; and

(4)  the Board had failed to meet the greater care and duty owed to a self-represented claimant.

8.On 15 January 2019, 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 [10] – [18] for his refusal to grant leave :

“ DISCUSSION

The Director’s Decisions

10.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power to make investigations in the matter.  See section 18 of Schedule 1A of the Ordinance. The Board had heard the applicant’s appeal and made its Decision.

11.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

12.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

13.  The applicant requested a hearing and he had appeared before me.  At the hearing, the applicant admitted that he had received the Director’s Decisions refusing his application for non-refoulement on 22 July 2016 and 6 July 2017 respectively.  He was able to communicate with the Adjudicator effectively without any problem.  All these demonstrate that he was not affected by the Hearing Bundle.

14.  The Adjudicator has, in her Decision, set out her reasons for not believing that the applicant was subjected to the fear of torture or being killed.  She also did not believe that he was indebted to the money-lender. In his affirmation, the applicant said that he had answered all the answers honestly.  He was unhappy that the Adjudicator did not believe him.

15.  The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: ‘Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers….’

16.  At §14 of the same judgment, the Court of Appeal further said: ‘Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

17.  As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer[2].  The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (‘the Ordinance’)[3].  The Director had considered the relevant reports in relation to the Country of Origin Information.  They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings.  The Court of Final Appeal had also relied upon The (United Nations High Commission for Refugees) Handbook in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187[4].  The applicant has not set out any reason why he considers that the information is unreliable.

CONCLUSION

18.  Having considered all of the grounds raised by the applicant, I find that the applicant has failed to raise any valid ground to challenge the Adjudicator’s Decision.  His application for judicial review has no reasonable prospect of success.  As such, I decline to grant leave to the applicant for judicial review.  Accordingly, I dismiss his application.”

THE APPEAL

9.The applicant filed the Notice of Appeal on 28 January 2019 in which he advanced the following grounds of appeal :

“ I am not satisfied with the decision because my life is not save (sic) in my country. Please help me to stay in Hong Kong until I have problem.”

DISCUSSION

10.The Applicant did not put forward any viable ground to challenge the Judge’s decision.  The applicant’s allegation had already been thoroughly examined by the Board that he would not face a real risk of harm or extortion if refouled and the Judge was correct in finding that the applicant’s case was lack of merit and he had failed to raise any valid ground to challenge the Board’s decision.  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 for judicial review.

11.For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

The applicant, unrepresented, acting in person.