|
HCAL755/2018
[2019] HKCFI 677
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 755 of 2018
BETWEEN
|
Md Tanvir |
Applicant |
|
and |
|
|
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of India. He is now aged 30 (DOB: 7 July 1988).
2. The Applicant claimed he would be harmed or killed by Shaheed and Ashfaq due to a loan dispute.
3. In September 2014, the Applicant set up a mobile phone business with his brother. He had to borrow money from Shaheed and Ashfaq to start his business.
4. Shaheed and Ashfaq were also mobile businessmen. They later sold goods to the Applicant.
5. In mid-2015, Shaheed and Ashfaq provided goods of bad quality to the Applicant. The Applicant suffered great loss and had difficulty to repay his creditors. Shaheed and Ashfaq pressed for payment. They harassed the Applicant and his brother. They assaulted the Applicant's brother in February 2016. Later, there was a fight when Shaheed and Ashfaq came again to demand payment. Some members of the Market Committee intervened. There was no settlement so the committee members told the Applicant to close his shop.
6. A few days later, Shaheed went to the Applicant’s home with some men. The Applicant was not at home. Shaheed threatened the Applicant's uncle and sister that he would kill the Applicant.
7. Two days later, Shaheed came again. The Applicant was not at home. Shaheed assaulted the Applicant’s brother. The Applicant was informed by his brother on the phone. He told the Applicant not to come back.
8. The Applicant called Shaheed. The two argued. Shaheed threatened to kill the Applicant if he would not repay the outstanding debt.
9. A few days later, the Applicant and his friend came upon Shaheed. There was a fight between both sides. The Applicant left the scene before the police arrived.
10. The police soon went to the Applicant's home to look for him.
11. Shaheed had a relative called Hakim. Hakim was a member of the Legislative Assembly. He also sent his men to look for the Applicant. The Applicant was not at home. Those men threatened the Applicant's family that they would kill the Applicant and his brother if they failed to pay up.
12. Shaheed’s uncle kept sending his people to look for the Applicant. They threatened the Applicant’s family, who warned the Applicant not to go home.
13. The Applicant did not feel safe in Kolkata. He went to Bangalore to stay with a relative.
14. In March 2016, the Applicant went back to Kolkata to collect payment from his customers. Shaheed went to the Applicant’s home again but failed to find him. Shaheed threatened the Aapplicant’s family that he would kill the Applicant.
15. The Applicant decided to leave India. He arrived in Hong Kong on 9 April 2016. He overstayed from 24 April 2016 and surrendered to the Immigration Department on 31 May 2016. The Applicant lodged a non-refoulement claim on 28 June 2016.
16. The Applicant last contacted his brother in November 2016. His brother said Shaheed and Ashfaq assaulted him and broke his arm. He had to hide from them.
17. The Applicant said he did not have the means to relocate himself to other parts of India and his enemies had resources to find him wherever he was in the country.
18. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
19. On 2 May 2018, the Applicant applied for leave for judicial review.
Timeline
20. Things happened in this order: –
| 2016-4-9 |
The Applicant entered Hong Kong from India as visitor. He was allowed to stay until 23 April 2016. |
| 2016-4-24 |
The Applicant began overstaying in Hong Kong. |
| 2016-5-31 |
The Applicant surrendered to the Immigration Department. |
| 2016-6-28 |
The Applicant lodged a non-refoulement claim. |
| 2017-1-23 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [“the Director's decision”] |
| 2018-2-5 |
The Applicant appeared before the Board for appeal. |
| 2018-4-20 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-5-2 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
21. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
22. In Re Moshsin Ali, the Court of Appeal ruled “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
23. In Form 86, the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
24. In his decision dated 23 January 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
25. The Applicant appealed to the Board. The Adjudicator interviewed him on 5 February 2018.
26. The Adjudicator accepted the Applicant had a money dispute with Shaheed and Ashfaq. However, she found there were inconsistencies and exaggerations in the Applicant’s claim. For example, the Applicant said at times Shaheed was a relative of Hakim; at other times he would say Shaheed’s father worked for Hakim. The Applicant alleged he could not relocate to other parts of India. However, he had not made any real attempt. The Adjudicator found it unconvincing that his enemies would be able to locate him with Harkim’s influence. She did not believe the Applicant's claim was genuine.
27. In any event, the Adjudicator found the complained situation was only a private dispute and not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Applicant failed to prove he had been inflicted with ill-treatment to a minimum level of severity. The Adjudicator studied relevant country-of-origin information ("COI"). She was satisfied that reasonable state protection and internal relocation were available to the Applicant.
28. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 20 April 2018, she refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
29. The Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
30. The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
31. The Applicant also complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
32. The hearing took place on 20 August 2018. The Applicant was in person. A Hindi interpreter provided service in court.
33. The Applicant said a lawyer helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant said his case had not been properly determined but he failed to give particulars of his complaint.
34. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“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 scrutinising 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.” [7]
37. The Applicant mentioned he was not legally represented when he appealed to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 23 January 2017.
38. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
39. The Applicant raised his language problem. In the current application, he managed to find a lawyer to help him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters when he was represented by the Duty Lawyer Service and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
40. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
41. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
42. The Applicant received the appeal bundle on 29 January 2018 before the Board hearing, which was scheduled for 5 February 2018. That was 7 calendar days (or 6 working days) before the hearing. The bundle was served on the Applicant in time.
43. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
44. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
45. The Applicant said he answered all the questions honestly in the Board hearing.[11] That would mean he knew well what was asked and how to answer. He was not confused.
46. There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
47. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
48. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 18th day of March 2019
|
(Henry Ng)
for Registrar, High Court |
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
|
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant on 18/3/2019
Md Tanvir
Applicant’s ref. no:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18/3/2019
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6065/17/2/64/IN1234
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2745/16 (formerly RBCZ 12455/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[10] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[11] The Applicant's affirmation, Point 8 on page 3.
|