Re Akbaruddin

CACV 253/2020

[2021] HKCA 77

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 253 OF 2020

(ON APPEAL FROM HCAL NO. 1655 OF 2018)

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Before:  Hon Yeung VP and Chu JA in Court

Date of Judgment: 28 January 2021

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Campbell-Moffat J (“the Judge”) on 26 June 2020 in HCAL 1655/2018 refusing 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 9 August 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 30 October 2017.

2.Pursuant to the directions of the Registrar of Civil Appeals given on 9 October 2020, the applicant shall lodge with the court 2 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 24 November 2020.  Despite the letter sent by the court on 14 October 2020 reminding the applicant of the aforesaid directions, he failed to do so.  The Registrar further directed that in the event of the applicant’s failure to lodge his skeleton arguments, he shall be deemed to waive his right to have an oral hearing and this Court shall proceed to determine the appeal on paper only and so we did.

Background

3.The applicant is a national of India.  The applicant visited Hong Kong or more than 20 occasions during the period from February 2011 to October 2012 and he last entered Hong Kong legally on 29 November 2012.  On this occasion he overstayed and was arrested by the police on 2 February 2013.  On 11 March 2014, he submitted his non - refoulement claim by way of written representation on the basis that if he were to return to India he would be harmed or even killed by his business partner Mr Vinod because of a business dispute.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1348. 

4.By the Notice of Decision dated 30 October 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 18 May 2018, the Board dismissed the appeal on 9 August 2018.  For the reasons set out in [68] to [95] of the decision, the Board found that the applicant’s evidence had significant inconsistencies and there was a total lack of evidence suggesting a partnership relationship between the applicant and Vinod nor could he produce any ledger of accounts, receipts and invoice supporting his case that he had purchased several thousand pieces of mobile phones for and on behalf of the partnership business.  The Board further rejected his case that he had been assaulted by Vinod or that he would face risk of harm if refouled. For the aforesaid reasons, the appeal was rejected on all applicable grounds.

The Judge’s decision

6.On 16 August 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decision of the Board and he did not provide any grounds of review.

7.The Judge dealt with the application on paper and by the CALL-1 Form of 26 June 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [8] – [9] of the CALL-1 Form:

“8.    There were no grounds of review.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

9.  Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have nevertheless considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately and in detail.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable”

The Appeal

8.On 10 July 2020, the applicant filed his Notice of Appeal.  He did not provide any ground of appeal save for saying that he does not want to go back to his home country as his life is still in danger and if he goes back, his opponent/enemy will kill him.

General Principles

9.Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but 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 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 to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

10.The applicant has not put forward any viable ground to challenge to the Judge’s decision and the appeal is bound to fail. 

11.Having read the decision of the Board, we take the view that the Board had carefully considered the applicant’s evidence and decided against it on the issue of credibility.  The Board did not accept that the applicant would be at risk of any harm if refouled.  It is within the province of the Board to reach its findings and conclusion and we see no basis for intervention. 

12.We are also satisfied that the Judge had duly considered the Board’s decision with vigorous examination and anxious scrutiny and we found no errors of law or procedural unfairness or irregularities in the Judge’s decision.

13.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, acted in person.

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

[2]  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.

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

[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 and its 1967 Protocol.