Re Abdul Basheer

CACV 280/2019

[2019] HKCA 1082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 280 OF 2019

(ON APPEAL FROM HCAL 1728 OF 2018)

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JUDGMENT

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Hon G Lam J (giving the Judgment of the Court):

INTRODUCTION

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 17 June 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 16 October 2017 and the decision of Torture Claims Appeal Board/an adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 17 August 2018.

BACKGROUND

2.The applicant is a national of India.  He arrived in Hong Kong on 11 November 2014 as a visitor and was permitted to stay until 18 November 2014.  He did not depart and overstayed in Hong Kong.  He was arrested by the police on 21 November 2014 and was then referred to the Immigration Department for investigation.  On 24 November 2014, he lodged his non‑refoulement claim.

3.The details of the applicant’s claim were set out in [7] of the Director’s decision and [29]‑[41] of the Board’s decision, and summarised by the Judge in [2] to [4] of the CALL‑1 Form dated 17 June 2019 [2019] HKCFI 1558.  In brief, the applicant claims that in about 2010, he worked as the bodyguard of Raja Singh (“RS”), a Member of the Legislative Assembly of the Bhartiya Janata Party (“BJP”) in his home area.  RS was very hostile to Muslims.  Although the applicant is a Muslim, RS still hired him because he had good physical fitness and was well trained in wrestling which made him fit for the job.  On 14 May 2014, the applicant followed RS to a conference during which RS instructed some Sikhs to attack and kill the Muslim community in the Kishan Bagh area at around the late night of 15 May 2014 due to an incident where a Sikh’s religious flag was found burnt in Kishan Bagh.  The applicant privately informed the Muslim community in the Kishan Bagh accordingly.  As a result RS’s plan was frustrated and he suspected the applicant had tipped off the Muslims.  RS sacked the applicant and threatened that he would not spare his life.  The applicant was terrified and went to Mumbai to avoid RS.  After staying in Mumbai for 6 months, with the assistance of his parents, the applicant fled to Hong Kong.  He claims that RS’s bodyguards are still looking for him, that he will not be safe upon return, and that the authorities will not protect him.

4.By the Notice of Decision dated 16 October 2017, the Director rejected the applicant’s claim on all applicable grounds namely, torture risk,^[1] BOR 2 risk,^[2] BOR 3 risk^[3] and persecution risk.^[4]

5.The applicant appealed to the Board against the decision of the Director.  After an oral hearing held on 23 April 2018, the Board dismissed the applicant’s appeal on 17 August 2018.  The Board found that the applicant’s account of event was incredible for the reasons that (i) the applicant did not raise the non‑refoulement claim immediately after he came to Hong Kong and chose to overstay until he was arrested; (ii) it was unlikely for RS to employ the applicant, a Muslim, as his bodyguard given his attitude towards Muslims as suggested by the COI (a fervent Hindu nationalist and a rabble‑rouser with a history of making hate speeches particularly against Muslims); (iii) the applicant’s evidence on when RS became a Member of the Legislative Assembly of BJP was confusing and incorrect; and (iv) the applicant’s account of the flag‑burning incident on 13 May 2014 followed by the revenge attack on 15 May 2014 was inconsistent with what was reported in the Times of India, see [61] to [65] of the Board’s decision.  For these reasons, the Board did not find the applicant’s evidence credible and rejected it.  In any event, the Board found that even if there was a risk of harm to the applicant if he returned to Hyderabad, internal relocation would be a viable option.  Based on the available COI, the Board did not consider that RS would be able to track down the applicant anywhere in the country; see [58], [59] and [66] of the Board’s decision.  Accordingly the Board rejected the applicant’s claims on all applicable grounds.

THE JUDGE’S DECISION

6.The applicant filed a Form 86 on 23 August 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions.  In his supporting affirmation filed on the same day, he advanced the following grounds for seeking judicial review (as summarized by the Judge at [11] of CALL‑1 Form):

(1)  he was not provided with translation service at the Duty Lawyer Service and no assistance in completing the Notice of Appeal or in understanding the hearing bundle;[5]

(2)  the Director had put too much weight on the Country of Origin Information (“COI”) that does not reflect the true situation in India — the reason for not reporting to police was because it was no use and the police would not take action;[6]

(3)  the Director cherry‑picked the COI to come to his decision;[7] and

(4)  the Board’s determination was not translated to him.[8]

7.After an oral hearing attended by the applicant, the Judge gave his decision on 17 June 2019 refusing to grant leave 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 [12]‑[21] (footnote omitted) for his refusal to grant leave:

“DISCUSSION

The Director’s Decision

12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision 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 the 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 Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

13. The applicant has not set out any exceptional circumstances.

14. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

15. The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16. The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

17. It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

18. Grounds (1) and (4) are simply not true as they are inconsistent with what the applicant said in court. They fail.

19. Grounds (2) and (3) are his opinions without any evidence in support of them. They do not stand.

20. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

21.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review.  Accordingly, I dismiss his application.”

THE APPEAL

8.On 24 June 2019, the applicant filed a notice of appeal, in which the grounds of appeal are stated to be

“that the [applicant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

9.In his skeleton submissions lodged on 13 August 2019 for the purposes of this appeal, the applicant set out some general legal principles and case law in relation to torture claim and “high standard of fairness” without referring or relating them to his own case.

10.We heard the appeal on 23 September 2019. At the hearing the applicant confirmed that he had nothing to add to the written materials.

DISCUSSION

11.In the present case, the Board rejected the applicant’s claim on the ground that his evidence was not credible and was rejected and found that, in any event, internal relocation was a viable option for him; see [5] above.  As this court had repeatedly stated, assessment of the evidence and COI materials and risk of harm is a matter primarily within the province of the Board as the primary decision‑maker.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the Board’s decision; see Re Nupur Mst [2018] HKCA 524 at [14].  The Judge duly examined the grounds of review raised by the applicant and did not find any reasonable prospect of success in the intended judicial review.

12.What was stated by the applicant in his notice of appeal and written submissions for this appeal failed to address the Judge’s decision in relation to the grounds in the Form 86 or point to any error in the decision.  The applicant has not produced anything to gainsay what the Judge said regarding the question of translation. Nor has he been able to point to anything to show that the Judge erred in saying the applicant had no proper basis to contend (i) that the Director or the Board put too much weight on COI that did not reflect the true situation in India, and (ii) that the Director or the Board cherry picked the COI in coming to the respective decisions. 

13.As has been emphasised in previous cases, an appeal to this court against a decision below refusing to grant leave to apply for judicial review is not an occasion for the applicant simply to repeat his arguments before the Judge, let alone his arguments before the Board.  In this instance the applicant has simply failed to engage with the Judge’s decision and wholly failed to show why it should be disturbed.

14.In any event, based on the materials we have seen, we do not see any prospect of success in the intended application for judicial review.

15.Accordingly, the appeal is dismissed.

The Applicant, unrepresented, appeared in person

[1]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

[5]  [10] of his affirmation.

[6]  [12] and [14] of his affirmation.

[7]  [13] of his affirmation.

[8]  [10], [17], [18] of his affirmation.