Re Shaikh Azharuddin

CACV 215/2022

[2022] HKCA 1358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 215 OF 2022

(ON APPEAL FROM HCAL NO 74 OF 2022)

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Before:  Hon G Lam JA and Andrew Chan J in Court

Date of Judgment:  19 September 2022

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J U D G M E N T

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

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 16 May 2022[1] refusing to grant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 4 January 2022.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 29 June 2021 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is an Indian national.  He entered Hong Kong as a visitor on 4 August 2017 and was permitted to stay for two weeks. He overstayed and was arrested by the police on 19 August 2020.  He made a claim for non-refoulement protection only after his arrest, on 2 September 2020, which was over three years after his arrival in Hong Kong.  His claim was based on the alleged fear that if he returned to India, he would be harmed or killed by members of the All India Trinamool Congress (“TMC”)  and Bharatiya Janata Party (“BJP”), for he had refused to help them to tout votes and is a supporter of the rival India National Congress party (“INC”).

3.By notice of decision dated 29 June 2021, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

4.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 3 December 2021, during which he gave evidence and answered questions from the Board.  The Board found that there were many “obviously conflicting versions” in the evidence of the applicant’s account of being assaulted and harassed as a member of the INC. The discrepancies were “too glaring to be ignored”, eventually leading the Board to reject the applicant’s evidence.  The Board noted that even if the applicant’s evidence was accepted, he had never been severely hurt or ill-treated by TMC or BJP supporters, and it is unlikely that the applicant would face any danger of risk on his return to India.  The Board considered that the applicant was in fact running away from the police for he was being pursued for an assault on the TMC local leader and from the lawful sanctions for that offence.  The Board noted that there was State protection in India against police malpractices and ill-treatment.  The Board also found that it would be viable for the applicant to relocate within India, such as Delhi, where he had stayed safely for 2.5 months in 2015.  As a result, in its decision issued on 4 January 2022, the Board dismissed the applicant’s appeal in relation to all applicable grounds.

The Judge’s decisions in the court below

5.On 20 January 2022, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  The applicant’s complaints were appended to his Form 86, which the Judge summarised as follows:

“ (1)  The decisions of the Director and the Board are unreasonable and unfair because they did not address his right to life.

(2)  The decisions of the Director and the Board are unreasonable and unfair because they did not address his right to life.

(3)  The Board was unfair to have too much reliance on the Country of Origin Information without taking into account his personal background and experience.

(4)  The adjudicator was unfair to require to respond to questions that he was not able to respond and she failed to consider the nexus between the political parties and official corruption in India.

(5)  The Director failed to consider the corruption and incompetency of the administration of India and he had failed to attain the high standards of fairness in his assessment of his case.

(6)  The Board’s Decision is irrational.”

6.An oral hearing was scheduled as the applicant requested one, but because of the pandemic, the applicant was invited by the court to make written submissions further to those he had already made, and to inform the court if he took the view that it was not possible to do so in place of an oral hearing.  As the applicant did not respond, the Judge proceeded to deal with the application on paper.

7.On 16 May 2022, the Judge issued his decision refusing to grant leave to apply for judicial review.  The reasons were set out at [14] – [19] of the Form CALL-1 as follows:

“ 14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1)  … …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.’

17.  Those grounds above are not valid reasons to challenge the Board’s Decision. Grounds (1),(2), (3), (5)  and (6)  are his personal opinion or comments without any evidence in support of them.  Ground (5)  is simply unreasonable.   The adjudicator is entitled to test his evidence at the hearing.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

The appeal to this Court

8.On 25 May 2022, the applicant filed a notice of appeal against the Judge’s decision.  The stated grounds of appeal may be set out as follows:

(1)  The Director failed to appreciate the presence of state acquiescence in this case, leading to an unfair outcome. 

(2)  The Director, the Board and the Court failed to take such argument into account.

(3)  The Board failed to make sufficient inquiry before making its determination.

(4)  The Board failed to give the applicant sufficient chance to arrange for relevant evidence for his claim.  As the applicant was detained at the Castle Peak Bay Immigration Centre he was not given time to prepare his case properly.

(5)  The Director put a meaning on the country of origin information that suited his pre-conceived conclusion, showing an unfair attitude.

(6)  The gravity of the applicant’s circumstances had not been weighed or realised by the Director and Board when considering his claim, and he should be given an opportunity to plead his case properly.

9.Despite the directions given by the Registrar of Civil Appeals, the applicant has failed to lodge any skeleton argument for his appeal.  Accordingly, and as foreshadowed in the directions, the hearing scheduled for the appeal on 30 August 2022 was vacated and we now determine the appeal on the basis of the written materials.

10.The legal principles applicable to an appeal of this kind are well established.  The function of judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward for interfering with the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

11.Grounds (1)  and (5)  advanced by the applicant are misconceived, for the material decision was that of the Board, which held a hearing on the merits of the applicant’s claim.  An alleged defect in the Director’s decision, unless perpetuated by the Board, would generally be superseded by the Board’s decision.

12.Grounds (1)  and (2)  are also misconceived, because the Board rejected the applicant’s claim not on the ground that the conflict affecting the applicant was a private matter without state acquiescence, but on the grounds that his evidence was rejected as being not credible, that there had not been the requisite degree of harm even on the applicant’s own evidence, and that it would be reasonably safe for the applicant to relocate within India.

13.Grounds (3)  and (6)  are bald assertions without any particulars or substantiation and must be rejected for that reason.

14.Ground (4)  is, in our view, not made out.  The applicant had been in Hong Kong for over three years before his arrest, which provided ample time for preparation of any claim for non-refoulement protection.  There were over nine months between the lodging of his claim on 2 September 2020 and the screening interview conducted by the Immigration Department on 8 June 2021, during which time the applicant was represented by the Duty Lawyer Service.  At that interview the applicant confirmed that he had mentioned all the facts and fears in India,[6] without stating that he needed any further time or opportunity to gather evidence or information for his claim.  In his appeal to the Board the applicant did not include as a ground of appeal that he had not had sufficient time or opportunity for preparing his claim.  There were another six months before the Board hearing.  There was no suggestion by the applicant to the Board in the appeal that he had not had enough time for preparation.  In relation to the assertion in Ground (4), the applicant has not specified what other matters he wished to investigate or what information or documents he wished to retrieve if he had the time and opportunity.  In these circumstances we are not satisfied that there was any arguable unfairness in the proceedings before the Board.

15.For these reasons, we do not consider that there is any realistic prospect of success in the intended judicial review.  The applicant has failed to show that the Judge was wrong to refuse leave for judicial review.  The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, acting in person