Re Ahmed Ibrar

CACV 289/2019

[2019] HKCA 1407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 289OF 2019

(ON APPEAL FROM HCAL 898/2018)

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Before: Hon Chu JA, G Lam and Lisa Wong JJ in Court

Date of Written Submissions:  28 October 2019

Date of Judgment:  18 December 2019

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.Before the court is a notice of motion filed on 14 October 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 30 September 2019 ([2019] HKCA 1088) (“Judgment”), dismissing the applicant’s appeal from a decision dated 14 June 2019 ([2019] HKCFI 1407) by Deputy High Court Judge Josiah Lam, refusing him leave to apply for judicial review of the decision dated 16 May 2018 (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim (“NRF Claim”).

Paper disposal appropriate

2.Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.In seeking leave to appeal to the CFA, the applicant asserted in the notice of motion as follows (sic):

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL information. The Officer and cours prefers to ignore overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.Further, by the written submission lodged on 28 October 2019, the applicant referred to ST v Director of Immigration (sic)[1] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim; and (4) that the court may intervene with the exercise of an administrative discretion where it is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.

6.However, the only attempted elaboration by the applicant as to whether and, if so, how the high standards of fairness had not been met in the processing of the NRF Claim was a one-sentence assertion in paragraph (5) that the Board had acted in a procedurally unfair manner by not properly assessing his credibility.

7.Towards the end of his written submission, in paragraph (8), the applicant also cited s 37ZT of the Immigration Ordinance (Cap 115). This section can have no relevance to the applicant’s case. His appeal to the Board against the rejection of the NRF Claim by the Director of Immigration (“Director”) was within time.

Discussion

8.The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

9.Nor do we see any scope to grant leave under the “or otherwise” limb.

10.Insofar as the applicant suggested in the notice of motion that the officers of the Immigration Department and the adjudicators of the Board involved in the screening of non-refoulement claims and the judges involved in determining the judicial proceedings arising therefrom have approached their tasks with a pre-disposition for dismissal with reference only to generic country of origin information (“COI”) without regard to the particular facts and evidence of the cases before them, the applicant has not advanced any or any proper basis for so suggesting. 

11.To the contrary, a review of the Director’s notice of decision dated 31 August 2017 and the Board’s Decision shows that any such suggestion by the applicant is most unfair.

(1)  It is clear from the Director’s detailed summary of the factual information provided by the applicant in his non-refoulement claim form dated 10 July 2017 and at the screening interview on 27 July 2017 (see [7]-[11] at pages 2 to 9) that the Director did have regard to the particular facts upon which the NRF Claim was grounded. In rejecting the NRF Claim, as summarised in [7(1)] of the Judgment, the Director primarily found that the matters alleged by the applicant in fact indicated a low future risk of harm to the applicant upon his return to India.  The further findings of availability of state protection and reasonable internal options were secondary reasons for rejecting the NRF Claim. Although they were made with reference to COI, the applicant did not pinpoint which parts of such COI do not accurately reflect the situation in India, as he complained in the notice of motion. We are particularly perplexed by the reference to “violence towards minorities”.  The NRF Claim was not at all premised upon the applicant belonging to any abused minority group. The applicant’s fear of harm stemmed purely from private monetary disputes, especially with his former business partners and employers.

(2)  Regarding the Board, as noted in [10] and [12] of the Judgment, the Board in fact accepted the applicant’s account of events.  The complaint in the applicant’s written submission that the Board did not properly assess his credibility is wholly misconceived. On the basis of the applicant’s account, the Board further accepted that there is a small real risk that the applicant would suffer mistreatment that would constitute torture or cruel, inhuman or degrading treatment or punishment if he should return to his home area in the reasonably foreseeable future. As further noted in [11] to [14] of the Judgment, the Board provided detailed legal reasons to explain why, despite the presence of such risk, the NRF Claim failed on each of the 4 applicable grounds for non-refoulement protection. In particular, as in the case of the Director, in dealing with “BOR 3” risk, the Board referred to COI to find the availability of appropriate state protection and internal relocation options. The applicant did not identify which parts of such COI do not accurately reflect the situation in India. We can discern no ground to question the Board’s analysis.

12.As for the courts’ role, we have already explained in [21] and [22] of the Judgment that a judicial review is not a channel for a reconsideration of facts. The Court of First Instance (“CFI”) will scrutinise the Board’s decision for any errors of law, procedural unfairness or irrationality while the CA will examine the CFI judge’s decision in light of the ground of appeal advanced by the applicant, which should be premised upon the CFI judge having erred in law, omitted to consider a relevant matter or been otherwise plainly wrong.

13.Neither the notice of motion nor the applicant’s written submission has really engaged the reasons given in the Judgment.

14.As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

The applicant, unrepresented, acting in person

[1] The correct citation should be ST v Betty Kwan.