HOSSAIN MOHAMMAD SAJID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 292/2019

[2022] HKCFI 483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 292 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 28 December 2018. 

2.  The Applicant had visited Hong Kong five times between November 2015 and March 2016.  He last arrived in Hong Kong on 17 September 2016 as a visitor but overstayed since 2 October 2016.  On 3 October 2016, he surrendered to the Immigration Department and made a non-refoulement claim. 

3.  In due course, his claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By the in the Notice dated 26 March 2018, the Director of Immigration (“Director”) rejected his claims.  He appealed against the decision Notice.  His appeal was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision. 

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service.  His claims are founded on three basis.  First, he feared that if refouled back to India, he would be harmed by a gangster named Fayaz Khan (“Khan”) because he was unable to pay Khan for the goods lost in the Chennai flooding in March 2016; and because he was a member of Communist Party of India (Marxist) (“CPIM”) political party while Khan belonged to Turmoil Congress (“TMC”).  Second, he will be harmed by a moneylender because of his debt owed to Adil.  Third, he will be arrested by the Indian police because of a false accusation of murder framed by Khan.

5.  The Applicant is an Indian national.  He operated a garment business in Kolkata from 2015 to 2016.  He used to come to Hong Kong to buy garment for sale in India.  He was a member of CPIM.  He was a social worker of the party with no specific duty.  He assisted during rallies.

6.  In December 2015, he entered into a business partnership with Khan who was a gangster and a kind of a leader in TMC.  Khan invested 1.3 million Indian Rupees (“INR”) in his business.  In March 2016, he suffered great financial loss as result of a flood in Chennai.  But Khan did not believe him and demanded profit sharing from the business.

7.  Since April 2016, Khan and his men went to his home and assaulted him several times.  They kicked, beat and slapped the Applicant in front of his brother with bare hands and feet.  The Applicant’s eyes, head, face and hands were injured.  The Applicant received medication from a local doctor.  His eyes were always watery because of the injury.  In May 2016, Khan and his people assaulted the Applicant and his brother.  His brother was hospitalised for weeks as a result.

8.  The Applicant was very scared.  He feared that Khan would harm or ill-treat his family.  He borrowed 130,000 IDR from the moneylender in June 2016 to pay Khan.  He had to repay the loan and interest of 70,000 IDR by the end of July 2016.

9.  Khan took the sum of 130,000 IDR but refused to accept the Applicant’s request of ceasing the partnership with him.  Khan threatened he would use his gang power to continue threatening the Applicant and his family if he could not pay him profits from the business on demand.

10.  The Applicant went to the Karai Police Station in the neighbourhood to seek assistance.  The police refused to accept his complaint because Khan was a big gangster in that area.

11.  Khan became mad upon learning that the Applicant had approached the police.  He beat up the Applicant’s brother who had encouraged the Applicant to make a report.

12.  In August 2016, Khan’s men assaulted the Applicant with bats and kicked him.  His head was injured.  They warned him that Khan would kill him if he ceased business.  He was released after two hours.  He sought treatment from local doctors. 

13.  The Applicant made a report to Karai Police Station, but the officers refused to accept his complaint.

14.  Two to three weeks later, Khan and his men came to the Applicant’s home at midnight.  They told the Applicant that they were mad upon learning that the Applicant and family were supporters of CPIM and took part in the recent election.  Khan threatened that he would not tolerate any person who antagonise TMC from continuing to rule India.  They kicked the Applicant and punched him.  He was injured on the left side of his body and his back. They also beat his brother with bats.  His brother received injuries on his feet. Before they left, they threatened to come again and take more brutal action if the Applicant could not pay Khan any money.  The Applicant received treatment from local doctors.

15.  The moneylender was also infuriated by the Applicant’s failure to repay the loan and interest since August 2016.  From time to time, he threatened to kill the Applicant if he did not repay.  He sent his people to the Applicant’s home twice and used abuse language to threaten his family.

16.  The Applicant learned from his friend that the moneylender was a powerful and influential person in Kolkata.  He believed the moneylender was a party member of TMC.  He also learned from his friend that the moneylender had close connection with Khan and were planning to set him up.

17.  In early September 2016, Khan demanded money from the Applicant.  Since the Applicant could not pay, he believed Khan framed him and his brother up for killing a TMC leader.  Upon hearing from his neighbour that the police would come and arrest him, the Applicant and his brother left Kolkata and went to stay in their uncle’s house at New Delhi.  After staying for 10 to 12 days, they departed India on 16 September 2016 using his passport without encountering any difficulties.

18.  While in Hong Kong, the Applicant was told by his father that Khan and his men had set fire to his home in October 2016 but his family had escaped from the fire and are now staying with his uncle in New Delhi.  His father also said that he learned from the village friend that Khan and the moneylender had not done anything detrimental to the family members, but they threatened to kill the Applicant if he returned to India.

The finding of the Board

19.  The Board found the Applicant evasive and his allegations vague and lacking in particulars.  The Board also found major inconsistencies between the Applicant’s case as stated in his NCF and his oral testimony before the Board.  The fundamental basis of the Applicant’s dispute with Khan as advanced in his NCF was a partnership dispute arising from Khan’s refusing to accept the Applicant’s assertion about loss due to the flood in Chennai and demanded business profit.  However, in his oral testimony, he said the dispute arose from his inability to repay loan of 2 million IDR at a 40% interest.  In his oral testimony, he confirmed that apart from the above money dispute and his political affiliation, he had no other problems in India.  The loan from the moneylender and the fabricated murder charge were not mentioned.  There are other inconsistencies such as whether Khan had beaten the Applicant’s parents and set fire to his house. 

20.  Accordingly, the Board found the Applicant was not telling the truth and his case is unbelievable. The Board accepted as true his personal and family background, his education working and relocation history and that he might have borrowed money from Khan for his garment business.  The Board accepted there was a flooding incident in Chennai but not whether the Applicant had suffered loss as a result; and even if he had and failed to repay Khan, it did ot directly give rise to the threats.  The Board rejected his case about the loan from the moneylender and the fabricated murder charge.  It did not accept that there is a real risk that the Applicant will be subjected to any serious harm or other ill-treatment. The Board found the dispute and relating matters were and are confined to the Applicant’s local area and there is nothing in the evidence that lends any credence to the extraordinary suggestion that TMC would assist Khan to track down the Applicant over the whole of India so as to harm him or that Khan was so powerful and influential as claimed.  Based on the Country of Origin Information (“COI”), the Board was satisfied that internal relocation is available to enable the Applicant to avoid the feared harm and risk, should these materialise.

21.  In conclusion, the Board found that the Applicant had failed to prove the factual basis to support his claim under any of the four applicable grounds under the USM and furthermore that internal relocation is available to avoid the feared harm and risk should these materialise.

The applicable legal principles          

22.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  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 court will scrutinize 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[5].

Grounds for judicial review

23.  The Applicant advanced the following four grounds in his Notice of Application for Leave to Apply for Judicial Review (Form 86):

(1)   the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

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

(3)   the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

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

24.  Though not listed as a ground, the Applicant mentioned in the Form 86 under “Background of the Applicant” that “he was not given an opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions”[6]. He also complained that the Board has significantly relied on news which is not officially recognized or is hearsay, and cases which are out-dated, resulting in the Board making groundless speculations that it was safe for him to return to India[7]. The Court understood that by ‘news’ and ‘cases’ the Applicant meant COI mentioned by the Board in the Decision.  The Court treated his first complaint as his elaboration of his second ground, ie procedural unfairness; and his second complaint as his fifth ground, ie erroneous reliance on COI.

25.  There are two main thrusts in the Applicant’s supporting affirmation filed on the same day. First, he complained about lack of language assistance and legal representation[8].  Second, he complained about procedural unfairness in that the hearing bundle which was in English was only given to him six days before the hearing with an intervening weekend of two days[9]. He also repeated the Board’s erroneous reliance on COI mentioned in the above paragraph.  The Court treated his complaint about lack of language assistance and legal assistance as the sixth ground and his complaint about late delivery of the hearing bundle as elaboration on his second ground, ie procedural unfairness.

26.  Thus, altogether the Applicant has advanced six grounds for his application for leave to apply for judicial review.  It would be convenient to consider the sixth ground first followed by the second ground and then the other grounds in numerical order.

27.  At the hearing, the Applicant said that the application and the affirmation were prepared by his friend for him according to his instruction.  He accepted that he understood the documents contained in the hearing bundle before the Board, namely his NCF, record of interview, the Notice and COI, though they were not written in his first language. 

Ground (6) - Lack of language assistance and legal assistance

28.  In Re Zafar Muazam[10], Re Zunariyah[11], Re Zahid Abbas[12], Re Tariq Farhan[13], and Re Lopchan Subash[14], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v. Sakthevel Prabakar[15] nor the judgment of FB v. Director of Immigration[16] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or Persecution Risk has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the Applicant was prejudiced due to lack of legal representation before the Board. 

29.  Likewise, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[17], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of having any documents fully translated into his first language for his benefit.

30.  Though the hearing bundle is in English, it is basically made up of his NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI.  The single most important document is the Notice of the Director.  The Notice is in English. Unfortunately, no translation was provided.  The Applicant cannot expect these documents be fully translated for him.   The Notice was issued to him on 26 March 2018.  He had in between the issue of the Notice and the oral hearing seven months to read and understand the Notice and seek assistance from among his own circle, if necessary.  He also had the services of an interpreter at the oral hearing before the Board.  As he admitted during this hearing that he had no problem understanding the documents in the hearing bundle, there is no substance in this complaint. 

31.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his NCF, attending the screening interview and presenting his case to the Director.  He therefore had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded them were contained in his written submissions, NCF and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. 

32.  Taking a global view of the circumstances, nothing amiss arose from the lack of legal representation in the process before the Board.  The Applicant suffered no prejudice due to lack of language or legal representation before the Board.

Ground (2) – Procedural unfairness

33.  The Applicant was unable to give particulars of the procedural unfairness complained of.  Doing the best it can, the Court identified two possible basis of his complaint.

34.  First, he complained in paragraph 6 of the Form 86 that he was not given an opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions.”   This is not true.  As the Decision shows, he testified and answered the Board’s questions.  When these facts were put to him, he admitted he had opportunity to address the Board and withdrew this complaint.

35.  Second, as mentioned in paragraphs 4 and 8 of Factual Background in his supporting affirmation, the majority of the documents in the appeal bundle used before the Board were in English, but were only given to him six days before the hearing including an intervening weekend of two days.  He did not have the funds to engage the services of an interpreter or sufficient time to prepare for the hearing due to his limited skills in English and the fact that he was unrepresented.  His complaint about lack of legal and language assistance has been disposed of in the above section.

36.  As for his complaint about the shortness in time between the service of the hearing bundle on him and the oral hearing before the Board, it must be noted that the single most important document in the hearing bundle is the Notice of Decision which contains the reasons why the Director refused his non-refoulement claims.  He had been served that Notice seven months before the hearing.  As for the other documents, except for the COI, the information therein was provided by him, although reduced into English.  He must be familiar with the information he provided.  As he had admitted, he had no problem with the documents.  Viewed in that context, six days was short, but not so inadequate as to amount to procedural unfairness. He had seven months to read and understand the Notice.  He should have exercised due diligence in preparing for his appeal before the Board than to indulge in the leisure of the weekend and then complain about procedural unfairness due to lack of time.  If he indeed need more time, he could have raised that with the Board, but he did not.

37.  The Court was unable to identify any other basis to support a complaint of procedural unfairness.  There is no substance in this ground.

Ground (1) – Unlawful exercise of discretion

38.  Under this ground, the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection.  This could not be a valid ground.  If the Applicant did not satisfy the requirements for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss his appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision.  That conclusion was reached by applying the applicable law relating to non-refoulement protection under the USM to the facts found.   Finding of fact is a matter exclusively within the province of the Board.  The Court was unable to find any error of law committed by the Board in reaching its conclusion.  Having rigorously examined the Decision and the papers in the light of the grounds, the Court was satisfied for the above reasons that the Decision could not be criticized.

Ground (3) – unreasonableness and irrationality

39.  The Applicant said that the basis of his allegation under this ground is that the Decision did not meet his expectation. His complaint could only be treated as an overall or general complaint of irrationality and unreasonableness in the Board’s finding.  This ground is therefore a complaint against the finding of fact by the Board.  As mentioned above, the function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  In an application for judicial review, the Court will only scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality.  

40.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant an untruthful witness and his factual case unbelievable.  It was on that basis that the Board found the Applicant failed to prove the factual basis to support his claims for non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  The Court could detect no error of law in the Decision or procedural unfairness in the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.

Ground (4) – Breach of greater care and duty owed to a self-represented claimant

41.  The Applicant did not particularise the duty and the breach.  In the light of the conclusion reached in respect of the other grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.

Ground (5) - Erroneous reliance on COI

42.  The Applicant complained that by reason of its reliance on outdated COI which is not officially recognized or is hearsay, the Board made groundless speculations that it is safe for him to return to Bangladesh.  The Board did rely on COI in reaching its Decision but it is not known which COI the Board relied on. Presumably, it relied on those presented to it in the hearing bundle by the Director.  The COI are all from official, authoritative and credible sources, including Country Report on Human Rights Practices for 2016: India published by the United States Department of State; Country Information and Guidance – India: Background Information, including actors of protection, and internal relocation (2015) and Country Policy and Information Note – India: Prison conditions (2016) published by the United Kingdom Home Office; The World Fact Book (2018), published by United States Central Intelligence Agency and; Transparency International, Corruption Perception Index 2016.  The information is contemporaneous and not outdated.  Having regard to the nature of the information, it must contain an element of hearsay.  The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information.  The information is credible.  Furthermore, the Board would carefully consider the information and give it such weight as it thought fit having regard to the nature of information, the circumstances the information was obtained etc.

43.  Other than a bald assertion that the COI are unreliable, outdated and hearsay, the Applicant provided no particulars, not even any hint, as to what are untrue, not to mention his failure to provide any publication contradicting those COI.  The Court considered there is no merit in this ground.

Conclusion

44.  For the above reasons, the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at para 14(1)

[6] Paragraph 6 of Form 86

[7] Paragraph 7 of Form 86

[8] Paragraph 5 of his supporting affirmation

[9] Paragraphs 4 and 8 of Factual Background in his supporting affirmation

[10] cacv 2/2018, (unreported) 23 March 2018

[11] [2018] HKCA 14

[12] [2018] HKCA 15

[13] [2018] HKCA 17

[14] [2018] HKCA 37

[15] (2004) 7 HKCFAR 187

[16] HCAL 51 of 2007

[17] CACV 78/2018