Ahmed Aftab v. Torture Claims Appeal Board

CACV 217/2020

[2020] HKCA 1022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 217 OF 2020

(ON APPEAL FROM HCAL NO 1922 OF 2018)

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BETWEEN

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Before:  Hon Lam VP and G Lam J in Court

Date of Hearing:  9 December 2020

Date of Judgment:  15 December 2020

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J U D G M E N T

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

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) dated 16 June 2020 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 28 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 27 March 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is an Indian national.  He arrived in Hong Kong on 28 January 2015 and was permitted to remain as a visitor until 4 February 2015.  He did not depart and, on 5 February 2015, he surrendered himself to the Immigration Department.  He lodged a non-refoulement claim on 14 April 2015. 

3.The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his creditor, Sarfraz Ahmed.  The factual background was summarized by the Judge in [5]-[6] of the Form CALL-1 ([2020] HKCFI 1198).

4.By notice of decision dated 27 March 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against the applicant.  The applicable grounds are BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]

5.The applicant appealed to the Board.  An oral hearing was held on 31 May 2018 during which the applicant was interviewed by the Board.  The Board considered that the applicant’s evidence was generally credible and reliable.  However, because the dispute with the applicant’s creditor, Sarfraz, was a private one, and because there was never any physical harm inflicted on the applicant and his family, nor did the applicant suffer any property damage, the Board found there was no real risk of harm.  Moreover, at the Board hearing, the applicant confirmed to the Board that his wife and daughter would be able to save up enough money within seven to eight months to repay the outstanding amount, after which everything would come to an end.  In any event, even if there was a risk of harm, the Board considered that state protection was available and internal relocation was viable.  Accordingly, the Board dismissed the applicant’s appeal on 28 August 2018.

Decision of the court below

6.On 13 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his affirmation in support, the applicant raised the following grounds for seeking relief:

(1)  the Board failed to maintain a high standard of fairness by not holding an oral hearing;

(2)  alternatively, the Board should not approach the appeal by see whether it could find fault with the Director’s decision, but should proceed by way of a re-hearing;

(3)  the Board ought to have considered matters such as the conditions of the applicant’s country of origin;

(4)  the Board failed to act fairly under common law; and

(5)  the Board did not take into account that he was not legally represented and did not inform him that he could complain.

7.A hearing was fixed for the application for leave to apply for judicial review, but the applicant failed to attend it.  The Judge therefore proceeded to determine the application upon consideration of documents only and, on 16 June 2020, gave his decision dismissing it.  His reasons were set out at [13]-[18] of the Form CALL-1 ([2020] HKCFI 1198) as follows:

“ 13.  In his affirmation in support of his application, he relied upon the grounds below.

(1)  The Board failed to maintain high standard of fairness by not holding an oral hearing for him.

(2)  Alternatively, the Board should not approach the appeal by finding faults with the Director, but should proceed by way of a re-hearing.

(3)  The Board failed to act fairly under the common law.

(4)  The Board did not take into account that he was unrepresented and it did not inform him that he could complain.

DISCUSSION

14.  The Board had held a hearing, as per the Board’s Decision. Ground (1) fails.

15.  In Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22, the Court of Appeal held that the applicant has no absolute right of free legal representation at every stage of the proceedings. It would be sufficient if he was provided with legal representation at the screening stage. Ground (4) fails.

16.  The other grounds (2) and (3) are irrelevant as the Board accepted his evidence. It had applied the statutory provisions and the Convention to the facts of the case.

17.  There is no evidence to show that the Board erred in the application of the laws to his case.

18.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to this Court

8.On 24 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision, setting out the following grounds of appeal:

(1)  he would face hardship if he were to return to his country;

(2)  the Board relied on news and its own assumptions that were not officially recognized, and also relied on hearsay;

(3)  the Board relied on outdated reports from non-official organizations; and

(4)  the lack of credible sources of information resulted in the Board making groundless speculations.

9.The applicant has agreed in writing that the appeal can be heard by 2 judges.

10.The applicant’s written submissions for this appeal raised the following arguments:

(1)  the Judge erred in law for not having applied the principle of irrationality to the Director’s and the Board’s decisions;

(2)  the Judge reviewed the matter lightly, which is not in line with the required high standards of fairness;

(3)  the Judge erred in law for not having applied the principle of procedural unfairness, as the Director and the Board were required to give reasons justifying their decisions;

(4)  the Judge did not properly analyze the applicant’s problems in his home country, and was unreasonable in refusing the applicant’s application; and

(5)  the Board failed to give the claimant sufficient opportunity to arrange relevant evidence in support of his claim and appeal.

11.In those submissions, however, the applicant did not provide any details or particulars in support of his arguments or grounds of appeal.

12.At the hearing before us, the applicant added that of the problems he has in India, 60% have been resolved but 40% are still there and because of that he cannot go back now, though he expects in the course of time those 40% would also be resolved.

Legal principles

13.In approaching this appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  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 scrutinizing the decision of the Board due to the seriousness of the 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 matters 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, procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge of the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward for reversing the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if there is a fresh application for judicial review; otherwise, an applicant could flagrantly disregard the stringent time limit for judicial review in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.As mentioned earlier, the applicant did not in his Notice of Appeal or written submissions provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars are not effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

15.As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any specific error by the Judge, the appeal should be dismissed.

16.In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its finding that there was no real risk of harm to applicant if he was to return to India.  This finding was based on the facts alleged by the applicant which were accepted by the Board who found his evidence generally credible and reliable.  Such a finding is within the province of the Board, and the court will not interfere with that assessment unless it can be impugned on public law grounds. 

17.In light of the Board’s finding that there was no real risk of harm, it was not necessary for the Board to consider country of origin information; doing so would not have changed the result.  As such, the applicant’s grounds of appeal and submissions pertaining to the Board are without merit.

18.The applicant’s arguments regarding the Judge’s decision are also without merit.  Clearly the Director and the Board both provided written reasons for their decisions; there was no failure on the part of the Judge to apply any principle of procedural fairness.  As stated earlier, analyzing the applicant’s problems in his home country is a matter within the province of the Board; the applicant has not raised any valid public law grounds for interfering with the Board’s finding that there was no real risk of harm.  The other arguments relating to the Judge’s decision are merely bare assertions without any supporting particulars or details.

19.Having considered the materials before us, we do not find any error in the Judge’s reasoning or conclusion.  The Judge has applied the relevant legal principles correctly.

20.For these reasons, the appeal is dismissed.

The Applicant, unrepresented, acting in person