Re Khan Asfague

CACV 431/2019

[2020] HKCA 106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 431 OF 2019

(ON APPEAL FROM HCAL 826 OF 2018)

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Before:  Hon Cheung JA, Toh and Lisa Wong JJ in Court

Date of Hearing:  21 January 2020

Date of Judgment:  22 April 2020

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J U D G M E N T

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

The appeal

1.This is an appeal by the abovenamed applicant, Mr KHAN Asfague, against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 4 September 2019 refusing him leave to commence judicial review proceedings. The intended judicial review proceedings sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 13 April 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 23 January 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of India now aged about 33, is a fear of being harmed or even killed by Faiyaz Khan (“Khan”), a career politician and the leader of the Communist Party of India (Marxist) in Ward 75 of Kidderpore (the applicant’s hometown), from whom the applicant and his former business partner, Md Murtuja (“Murtuja”), had borrowed 1 million Indian Rupees (INR) (“Loan”), which they had failed to repay. 

3.Such alleged fear is said to arise out of the following events:

(1)  In 2013, the applicant and Murtuja started to trade in electronic goods, principally the resale of mobile phones of various models sourced by them in China and Hong Kong.

(2)  In about October 2014, they borrowed the Loan to expand the business.

(3)  They began to experience cash flow problem and could not keep up with the instalment repayment of the Loan in around July 2015 because certain buyers defaulted in making payment to them.

(4)  Murtuja soon fled Kolkata where the business was based, leaving the applicant to face Khan alone.

(5)  After the applicant missed the deadline imposed by Khan for the settlement of the July 2015 instalment, from August to November 2015, Khan and his men went to the applicant’s shop and house on a number of occasions to threaten and assault him. The applicant was pushed, slapped, punched and kicked. The most serious injury that he had sustained was a cut to his head that required stitching.

(6)  On one occasion in October 2015, Khan and one of his men took the applicant to a remote spot in the suburb to threaten him again. They slapped the applicant on the face when he tried to explain his situation. Although the applicant was abandoned at the place, he was not really harmed and was eventually able to find his way home.

(7)  Fearing for his safety, the applicant left Kolkata to stay with a friend in Asansol City for a week or two in October 2015, during which he did not encounter Khan or his men as he stayed mostly indoors.

(8)  The applicant approached the Watgunj Police Station in November 2015 after Khan and 4 to 5 other men forced their way into his house and attacked him with their bare hands for 5 to 7 minutes. However, the officer attending him did not bother to take any note of what he said. Instead, he invited Khan over to discuss the matter with him in the applicant’s presence. The applicant was asked to leave the police station on the basis that Khan would not further harass the applicant and the applicant would not pursue the complaint against Khan. The applicant believed that the officer dealt with his compliant in such an offhand manner because Khan was a powerful politician. However, he did not complain about such misconduct or inaction because he did not know where he could do so. He became convinced that the police cannot and will not protect him from Khan and his men.

(9)  The loss of faith in the police had caused the applicant to grow increasingly frustrated. Believing that Khan could locate him anywhere in India, the applicant decided to come to Hong Kong, which he had just visited for business for 12 days in October 2015.

(10)    The applicant learnt from his family that after his departure, Khan had gone to his home 2 to 3 times to look for him and to threaten his family to disclose his whereabouts. To avoid any further harassment from Khan, the applicant’s family moved out of Kolkata. Khan has not approached them again since their relocation.  

Illegal entry into Hong Kong and lodgement of the NRF Claim

4.The applicant arrived in Hong Kong on 28 November 2015. He was permitted to remain as a visitor until 12 December 2015. The applicant did not leave and overstayed since 13 December 2015. He surrendered to the Immigration Department on 14 December 2015. 

5.He lodged the NRF Claim initially by written representations on 26 April 2016 and 17 May 2016, which contained only the basics of the claim. The NRF Claim was more fully set out only when the applicant lodged his non-refoulement claim form dated 18 July 2016.

Director’s Decision

6.In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 29 August 2016 with the applicant who was then advised and represented by the Duty Lawyer Service.

7.The Director found the NRF Claim unsubstantiated under any of the grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 3” risk[3] and “BOR 2” risk[4]. As explained in the Director’s Decision:

(1)  First, it was not accepted that the applicant faces any real or imminent risk of harm. Despite always outnumbering the applicant, Khan and his men had inflicted a limited level of bodily harm on the applicant, which indicates that they had no genuine intention to cause serious physical injury to the applicant, or to escalate the harm against him. While they verbally threatened the applicant’s parents in order to obtain the applicant’s whereabouts, they had not caused any bodily harm to them. Further, the potential harm from Khan (if any) would be localised in nature. The applicant and his parents have not encountered Khan or his men after their relocation.  There is no evidence Khan has attempted to track or trace the applicant or his parents.

(2)  Second, the latest independent country of origin information (“COI”) does not support the assertion that the Indian police cannot and will not offer the applicant protection against Khan.  Rather, the up-to-date objective COI shows that reforms and improvements have been and are on-going in India with positive results in recent years. The Indian police tackle crimes, even those committed by politicians such as Khan.  The Indian authorities had taken detergent measures to combat corruption and malpractice by any individuals, even officials. There are also alternative avenues to seek justice in India, e.g. the Central Vigilance Commission. The availability of state protection would lower or even negate the level of risk of harm from Khan and his men (if any).

(3)  Third, in a country as large and populous as India, many reasonable internal relocation alternatives (e.g. to Delhi, the fastest growing state of the country with a progressive business environment) are available to an able-bodied adult like the applicant.

Appeal to Board and Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision on 3 February 2017.

9.The Board conducted a rehearing of the NRF Claim on 8 February 2018, at which the applicant testified before, and answered questions by, the Board through a Hindi/English interpreter.

10.The Board’s Decision covered all 4 applicable grounds for non-refoulement protection.

11.The Board found the applicant not a witness of truth who had fabricated claims. The centerpiece of the NRF Claim could not stand.  The applicant had given “vague and evasive” evidence in relation to the alleged business with Murtuja, including as to (1) why Murtuja would want to partner with the applicant who could contribute only INR 50,000 as capital, who could barely read and write even in Hindi, who had no prior experience of running a business and who knew very little about electronics; (2) what their business plan was (other than “to get the business ahead and to make the business successful”); (3) what the initial capital was and how it was applied to set up and operate the business; (4) how they could be selling models that had already been discontinued before the start of the business; (5) why traders in Mumbai (which is a much bigger city than Kolkata) would need to source goods from the applicant and his partner in Kolkata instead of buying directly from China; and (6) how the Loan was exactly used to expand the business. The applicant could give no sensible explanation why Khan would need to kidnap him in October 2015 after having threatened and assaulted him many times at his shop. He gave inconsistent testimony on (1) the monthly interest rate of the Loan (3% or 10%); (2) the amount of the bad debts that caused the cash flow problem since July 2015 (INR 1.2 million or INR 200,000-300,000); (3) the number and frequency of Khan’s “visits” to him from mid August to October 2015; and (4) where his parents had been hiding from Khan. His return to India after staying in Hong Kong for 12 days in October 2015 was also incongruous with his being afraid for his safety in India. See [39] to [111] of the Board’s Decision.

12.In view of such deficiencies in the applicant’s allegations and evidence, the Board rejected the applicant’s claims in their entirety, both individually and cumulatively. More particularly, the Board expressly found that the applicant did not start a business; that he did not borrow money from Khan or anyone else in India; that he was not threatened, physically assaulted or harmed in any way for not repaying a loan; that he made no report to the police because there was nothing to report; that he did not have to go into hiding or flee his country to evade any creditor; that his parents did not have to move to avoid harassment by any creditor of the applicant; that there is no real risk that the applicant will be harmed by anyone in India for any reason; and that there is no real risk the applicant would face any of the proscribed harms should he return to India. See [112] to [121] of the Board’s Decision.

13.For the sake of completeness, the applicant also claimed before the Board that he suffered (unspecified) problems, which he had not mentioned before, due to his support for the All India Trinamool Congress Party (“TMC”). However, he was only able to tell the Board that there was rivalry between the TMC and the Congress Party in West Bengal; that he was at a meeting when a fight broke out between the 2 parties; that it happened before he opened his business; and that he was not seriously hurt.  The Board found such political claim vague as to when and by whom the applicant was attacked. Further, the available COI shows the 2 parties are ideologically not far apart. There is no COI that they have been involved in violent conflict with each other. Indeed, there are reports that they were considering forming an alliance in the 2019 state elections. See [88] to [91] and [111] of the Board’s Decision.

Application for leave for judicial review and Judge’s Decision

14.By a Notice of Application for Leave to Apply for Judicial Review (Form 86) issued under HCAL 826/2018 on 11 May 2018, the applicant sought leave to apply for judicial review of the Board’s Decision on the following grounds/complaints:

(1)  that the Board had unlawfully fettered its discretion by refusing his appeal “on the grounds that they did not satisfy the requirement”;

(2)  that the Board acted in a procedurally unfair manner in dealing with his appeal;

(3)  that the Board’s refusal of his appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness;

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

(5)  that the hearing bundle was given to him only 6 days (including a weekend) before the hearing before the Board;

(6)  that the documents in the hearing bundle, including the Director’s submission, were further in English which he could not have interpreted to him given the short preparation time available and his limited means;

(7)  that as a result, he was confused as to what happened at the hearing before the Board; and

(8)  that the Board made the groundless speculation that it is safe for him to return to his country as a result of relying on unofficial or hearsay news and out-dated cases.

15.After attempting to hear the application for leave for judicial review in open court on 20 August 2018 and 26 September 2018, at which the applicant was absent[5], the Judge refused leave on the papers before him.  His reasons can be found in [32]-[48] of the Form CALL-1 dated 4 September 2019, [2019] HKCFI 2168 (omitting footnotes):

“Discussion

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

33.  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’. Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising 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 COI 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.”

34.  The Applicant complained there was a lack of legal representation and language assistance for his appeal to the Board.

35.  The Applicant was represented by the Duty Lawyer Service up to the Director's decision dated 23 January 2017.

36.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim (sic) does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

37.  The Applicant raised his language problem.

38.  It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

39.  In the current application, the Applicant had Form 86 and the affirmation prepared in English. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. He was also assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

40.  The Applicant complained he received the appeal bundle only a few days before the Board hearing.

41.  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.

42.  The Applicant said he received the appeal bundle on or about 29 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 5 February 2018. The bundle was served on the Applicant in time.

43.  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. There was no evidence to show the bundle was difficult or voluminous.

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 his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

45.  The Applicant said he answered all the questions honestly in the Board hearing. That means he knew what was asked and how to answer.  He was not confused.

46.  There was no evidence the Adjudicator had taken into account outdated cases, information not officially recognised or simply hearsay.

47.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision 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 was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant's non-refoulement claim.

Conclusion

48.  The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.”

Appeal to Court of Appeal and grounds of appeal

16.By a notice of appeal filed herein on 17 September 2019, the applicant appealed against the refusal of leave for judicial review on these 2 grounds:

(1)  that he “will face hardship if he is to return back to his home country” (“Ground 1”); and

(2)  that “the [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.” (“Ground 2”)

17.In his skeleton argument dated 9 December 2019, the applicant referred to ST v Director of Immigration (sic)[6] [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 parte Smith[7] 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 interfere with the exercise of an administrative discretion that is beyond the range of responses open to a reasonable decision-maker.  However, the applicant did not suggest whether and, if so, how the high standards of fairness have not been met in the processing of his claim.

18.The applicant appeared in person at the hearing of the appeal on 21 January 2020. By way or oral submission, he urged us to go onto the internet to check what is happening in India on the ground of religion.

Court of First Instance’s role in judicial review in non-refoulement claim

19.The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

20.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[8]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

21.Applying these principles, first, as summarised in [7(1)], [11], [12] and [13] above, the NRF Claim failed on the issue of assessment of risk at both tiers of screening under the Unified Screening Mechanism.  In particular, the applicant was found by the Board to be facing no real or substantial risk of harm upon his return to India. The applicant’s bare assertion under Ground 1 that he will face hardship if he is repatriated back to India goes against such finding by the Board. The question whether the applicant would be at risk if refouled is a question of fact within the province of the Board (after the Director): see [19] above. The Board heard the applicant. It provided detailed reasons in [91], [95] to [111] of its decision for the findings summarised in [12] and [13] above. The applicant has not articulated before us any or any arguable errors of law, procedural unfairness or irrationality on the part of the Board in coming to such adverse findings against him, which had been overlooked by the Judge. Ground 1 is devoid of merit.

22.Ground 2 targets the Board. As explained in [20] above, in hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is the judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim. The applicant has not in either his notice of appeal or his written or oral submission before us, stated in any or any meaningful way how the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in not granting leave for judicial review of the Board’s Decision. Nor can we discern any.

23.Even insofar as the Board’s Decision is concerned, Ground 2 has not particularised the alleged unrecognised or hearsay source of news, outdated cases or incredible source of information that the Board is said to have referred to or relied on. Nor has the applicant alluded to any particular part of the Board’s Decision that is allegedly speculative or groundless as a result of the Board having acted on such news, cases or information. 

24.As far as we can see, the Board referred to and relied on COI only in discussing the applicant’s political claim. Such allegation was raised for the first time by the applicant only at the hearing of the appeal against the Director’s Decision before the Board. We note that irrespective of the COI regarding the relationship between the TMC and its political rivals, on his own case, the fight in which the applicant was involved in any event took place before he started his partnership with Murtuja, i.e. before 2013. And the applicant has not mentioned any adversities to him after 2013 arising out of his support for the TMC. Ground 2 is likewise unmeritorious.

25.Lastly, on what the applicant said in court, we observe that the NRF Claim as presented by the applicant, whether before the Director or the Board, had nothing to do with religion at all. We do not see the relevance of any religious conflicts in India.

Disposition

26.For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.   

The applicant, unrepresented, appeared in person