CACV 90/2019
[2019] HKCA 671
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 90 OF 2019
(ON APPEAL FROM HCAL 1022 OF 2018)
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| RAI PANCHA MANI | Applicant
(Appellant) |
| and | |
| TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | 1st Putative
Respondent |
| and | |
| THE DIRECTOR OF IMMIGRATION | 2nd Putative
Respondent |
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| Before: | Hon Yuen JA and Lisa Wong J in Court |
| Date of Hearing: | 3 June 2019 |
| Date of Judgment: | 13 June 2019 |
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J U D G M E N T
___________________
Hon Yuen JA (giving the Judgment of the Court):
Introduction
1.1. This is an appeal by Mr Rai Pancha Mani (“the appellant”) from an order of DHCJ K W Lung (“the judge”) given on 8 February 2019 dismissing his application for leave to start judicial review proceedings. The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)1.
1.2. The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 16 May 2018 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”). The TCAB’s decision was an appeal against the decisions of the Director of Immigration (“theDirector”) who had earlier rejected that claim.
Background
2. The appellant is a national of India born in 1985 in Darjeeling, West Bengal, India. His parents have died, he has no siblings and he has never married. From 2007 to 2016, he was a business man engaged in selling garments and leather goods in India. He entered Hong Kong on 6 July 2016 as a visitor but overstayed. He surrendered to the Immigration Department on 15 August 2016 and raised his claim for non-refoulement to the Immigration Department.
The appellant’s allegations
3. The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision. Put briefly, the appellant alleged that if he was returned to India, he would be at risk of being killed by six persons who belonged to the Trinamool Congress Party (“TMC”).
- In 2009 the appellant became a member of a political party, called the Gorkha Jan Mukti Morcha (“Gojamumo”). Gojamumo aspired to self-government in West Bengal State. TMC, which was the ruling party in West Bengal, opposed Gojamumo.
- At the end of 2009, a man called Gurung (whom the appellant believed to be a member of TMC) and other members of TMC demanded that the appellant join the TMC and threatened to kill him if he continued to support Gojamumo. A group of 4 - 5 gangsters armed with pistols went to his home about 5 times to threaten him. The applicant did not report these incidents to the police because he believed that the police would not take action as they were corrupt and closely related to the TMC.
- In around June 2010, the appellant moved to Kathmandu in Nepal. He stayed at his friend’s house for about 2 to 3 months and returned to his home in Darjeeling.
- At the end of 2010, the appellant moved to New Delhi and started his garment business again. In 2012, the applicant worked in his friend’s company in New Delhi engaging in selling garments and leather goods to the U.K. The applicant was informed by villagers in his home town that the TMC had continued to try to locate him.
- In 2014, the appellant started his own company, namely, Rai Garment Import and Export in New Delhi which sold garments and leather goods to the U.K.
- On 15 July 2014, the appellant was kidnapped by 3 men who told him that they came from the TMC and they were gangsters. They demanded ransom money of 2,000,000 Indian rupees and threatened to kill him. They hit him and took him to the jungle where there were another 3 men waiting for him. They took away his money as well as his ATM card. These 6 men took him to another place and attacked him with rods. After the ransom money of 2,000,000 Indian rupees was paid by his cousin in the UK, he was released after 2 days. The appellant had no major injuries.
- The appellant relocated to another village in New Delhi. After one month, he reported the incident to the Subzi Mandi Police Station but the police demanded that he withdraw his report. After around 15 days, the appellant sought the court’s assistance. He had the assistance of a lawyer. The court directed the police to arrest the 6 men, of whom 3 were arrested and subsequently sentenced to 2 years’ imprisonment.
- From 2014 to 2016, the appellant continued to operate his business in New Delhi, but the other 3 men who were not arrested kept calling him.
- On 6 July 2016, the appellant came to Hong Kong as a visitor. He was informed by his employee that the 3 men who had been imprisoned had been released on 11 July 2016 and had come to his shop to locate him. He therefore overstayed in Hong Kong and surrendered to the Immigration Department on 15 August 2016.
4. The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”.
5.1. What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.
5.2. “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
5.3. “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination.
5.4. What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.
The Director’s Decision
6. The appellant lodged the non-refoulement claim form (“NCF”) on 16 May 2017. The appellant had legal assistance to prepare his claim. He did not attend the screening interview scheduled on 6 June 2017 as he had been given sick leave. His sick leave certificate was sent to the Director through the duty lawyer by letter of 7 June 2017. The Director did not reschedule an interview but requested the appellant to answer questions sent by letter dated 8 June 2017. The answers to the questions dated 19 June 2017 (“the Answers”) were returned to the Director through the duty lawyer by letter dated 20 June 2017. After assessing the NCF and the Answers, the Director concluded that the appellant had failed to make out his claim as a matter of fact. The Director rejected the appellant’s claim for reasons set out in a decision given on 5 July 2017 in respect of “BOR2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk (“the Director’s Decision”).
The TCAB’s Decision
7.1. The appellant then appealed to the TCAB which held a hearing at which the appellant was present. Interpretation was provided to him. The appellant produced 11 documents to support his claim for non-refoulement. The TCAB noted that the documents did not mention payment of the ransom amount. The appellant alleged that his lawyer had advised him to keep his case simple but the TCAB found this not credible. The Board accepted that the appellant had been kidnapped and robbed, but did not accept that it was for political motives.
7.2. The TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”). The TCAB found that (i) the appellant was a mere member of Gojamumo and his refusal to join TMC would not have made him a target to be killed. In any event the political situation regarding aspirations for self-government in Darjeeling and West Bengal were confined to those regions, and had ceased to affect the appellant when he relocated to New Delhi where he ran his business from 2014 to 2016. He had had no difficulty relocating to other cities in India and was able to travel outside the country on his own passport. As for (ii), the 6 men who robbed and kidnapped him were gangsters who committed the crimes for money and there was no evidence of political connotations.
7.3. The TCAB found that the appellant had failed to show that any treatment he would face on return would attain a minimum level of severity, or that there is a genuine and substantial risk of the alleged ill-treatment, or that there is any state acquiescence.
Application for leave to start judicial review
8. The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision. The appellant set out his grounds in his affirmation in support which may be summarized as follows:
(1) he was deprived of the opportunity of attending an interview as he was ill on 6 June 2017;
(2) the Director could not rely upon the reason “in the interest of prompt and effective assessment of my claim” as the reason for not having an interview with him;
(3) he was given the hearing bundle, but he did not understand the contents of it because they were in English and nobody explained the contents to him; and
(4) the Board’s Decision written in English was also not interpreted to him.
The Judge’s Decision
9.1. The appellant appeared at the hearing before the judge with the aid of an interpreter. The judge assessed the procedural irregularity under section 37ZB(1)(b) of the Immigration Ordinance (Cap. 115) but found that the procedural irregularity was addressed and remedied by the TCAB which had given the appellant a complete rehearing. The applicant had further confirmed with the judge that he had no complaint about the lack of an interview, that he had a fair hearing before the TCAB, and had made no complaint on the language issue before the judge.
9.2. The judge refused leave for reasons set out in his Decision, in particular
“The Director’s Decision
20. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision with wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.
21. Grounds (1) and (2) appear to be special circumstances which require further consideration because there is no dispute that the Immigration officer had asked the applicant to produce a medical certificate to prove that he was unfit to attend the interview schedules on 6 June 2017 by 7 June 2017. He had complied with the request and the Immigration officer was satisfied that he was unable to attend the interview on 6 June 2017 on medical reason. Nevertheless, the Immigration officer, for “the interest of prompt and effective assessment” decided to assess his case on the papers. He sent the questionnaire to the applicant for answers. The applicant had provided the answers as requested. The Director assessed his application on the papers accordingly.
22. Under section 37ZB of the Immigration Ordinance, Cap. 115 (“the Ordinance”), the Immigration officer has the power to require information from the applicant. Under section 37ZB(1)(b), the Immigration officer has to have an interview with the applicant:
(1) After a completed torture claim form is returned by a claimant, an immigration officer—
(a) may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies; and
(b) must require the claimant to attend an interview to provide information and answer questions relating to the claimant’s torture claim.
23. Although the applicant did not put the above procedural irregularity in his Notice of Appeal to the Board, the Adjudicator was alive to this issue as he stated in the Board’s Decision. In paragraph 5, he said:
‘It should be pointed out that the Appellant was required to attend a Screening Interview. However, the Appellant was unable, due to sick leave, to avail himself of the opportunity to explain his case. As a result, he provided information by way of the QS (Information came from the DI Decision)’
Against the above background, the Adjudicator decided he would hear the case afresh. I consider that the Adjudicator had given good reasons for him to hear the case afresh. See Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration[2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018, §19.
24. Therefore, the procedural irregularity under section 37ZB of the Ordinance has been addressed and remedied by the Board. There are no other exceptional circumstances in the screening process.
25. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.
The Board’s Decision
26. Upon the applicant’s request, a hearing was fixed for him. He appealed before me.
27. The applicant told me that his affirmation was prepared by his friend. He further told me that he had answered all the questions in the Question Sheet. He understood the questions and all the answers given are true and correct. He would not complain that he was deprived of the opportunity of attending an interview.
28. He also said that when he attended before the Adjudicator, he was assisted by an interpreter. He had no problem in understanding the questions to him by the Adjudicator. The questions were similar to those put to him by the Director. But there were other questions as well. He had answers all the questions. Those answers are true and correct. He had no complaint about the language issue. He did not complain to his friend about the language.
29. He also had no problem with the contents of the Board’s Decision.
30. Grounds (1) and (2) would have been valid points for procedural irregularity, for which leave should be given. However, I consider that the Adjudicator had effectively dealt with this procedural irregularity. I see no unfairness in the screening process and the appeal hearing. The applicant has also confirmed that he would not complain that there had not been an interview for him. These grounds fail.
31. In view of the applicant’s confirmation that he had had a fair hearing before the Board and that he had made no compliant on the language issue, grounds (3) and (4) also fail.
CONCLUSION
32. In the circumstances, I find that there is nothing amiss in the hearing before the Adjudicator. The applicant’s proposed judicial review has no reasonable chance of success. I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”
Appeal to Court of Appeal
10. By a Notice of Appeal filed on 22 February 2019, the appellant appealed the judge’s order to this court. The appellant stated the following grounds in the Notice of Appeal:
“I am not satisfied with the decision. I can’t go back to my country at this moment because my life is not save there. Please help me to stay in Hong Kong until I have [no] problem.”.
Legal Principles
11. It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.
11.1. The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB. They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.
11.2. When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB. Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB. In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision. The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration2and I will not repeat them here.
11.3. Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal. Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong3. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall4are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.
Skeleton Submissions
12. After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions. The appellant lodged his skeleton submissions with this court on 29 April 2019. To summarize, he repeated his problems and fear of returning to his country. He sought help from the court to allow him to stay in Hong Kong as the police in his country could not assist him. He did not provide any grounds to support his allegation that the judge was in error.
Discussion
13. Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case.
13.1. The appellant had confirmed at the hearing before the judge that he had a fair hearing before the TCAB and he did not complain about the lack of an interview by the Director.
13.2. We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.
Order
14. For the reasons set out above, this appeal must be dismissed.
| (Maria Yuen) | (Lisa Wong) |
| Justice of Appeal | Judge of Court of First Instance
|
The applicant, unrepresented, appeared in person