MOHAMMED FIROZ KHAN v. WESLEY WONG, ESQ., AND ANOTHER

HCAL 877/2017

[2018] HKCFI 2104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 877 of 2017

Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 44-year-old national of India who arrived in Hong Kong on 2 June 2007 with permission to remain as a visitor up to 16 June 2007 when he did not depart and instead overstayed until he was arrested by police on 13 February 2008.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Chak Chandoli, Samastipur, Bihar, India.  After leaving school he first worked as a taxi driver, got married and has a daughter, and later ran a shop in Kolkata selling things, for which in 2001 he borrowed a loan from AB, a wealthy money-lender with political connections for which he was required to make monthly repayments, but when he was unable to do so in late 2006 and was threatened by AB, he left India for Hong Kong in June 2007 where he overstayed and raised his torture claim which was subsequently taken as a non-refoulement claim under the Unified Screening Mechanism (“USM”) and for which he later completed a Non-refoulement Claim Form and attended screening interviews before the Immigration Department with legal representation from the Duty lawyer Services.

3.  By a Notice of Decision dated 26 September 2014 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

4.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from, that his dispute with AB was a private and personal money matter without official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread acrossa vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district such as Delhi where it would be difficult if not impossible for AB and his men to locate him.

5.  On 9 October 2014 the applicant filed his appeal to the Torture Claims Appeal Board(“the Board”) against the decision of the Director, and for which he attended an oral hearing on 27 April 2015 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 June 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision. 

6.  On 8 July 2015 the applicant filed his Form 86 under HCAL 123/2015 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

 (1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

 (2) irrationality in the adjudicator’s failure to take into account or putting proper weighton relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

 (3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

 (4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and misdirected himself as to the extended meaning of state protection;

 (5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

 (6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

 (7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

 (8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

7.  On 23 September 2016 and upon appearing in person the applicant’s application was refused and dismissed by Li J.  As far as I am aware that decision was never appealed by the applicant.

8.  On 28 December 2016 the Director on his own initiative by letter invited the applicant to submit any additional facts which he may consider relevant to his non-refoulement claim in particularly any absolute and non-derogable rights under HKBOR being violated including right to life under Article 2 (“BOR 2 risk”), and upon considering his further submission in which he essentially repeated his claim of fear of being killed by his enemy and gangsters upon returning to India with his family also being threatened and with newspaper reports on the general situation in India, the Director found no evidence that he would be subjected to personal risk of any of his absolute or non-derogable rights under HKBOR including BOR 2 risk being violated upon his return to India, and by a Notice of Further Decision dated 13 January 2017 again rejected his claim.

9.  The applicant again lodged an appeal to the Board against that decision of the Director, and for which he attended another oral hearing before the Board on 3 October 2017 during which he repeated his claim of having serious problem in India relating to money matters which he was hopeful would be resolved with several more weeks with the help of his family (paragraph 14 of the Board’s decision).  Upon hearing the applicant and having found that his additional representation was no different to what he had stated as before and not relevant to BOR 2 risk, the Board dismissed his appeal on 6 November 2017. 

10.  On 13 November 2017 the applicant filed another Form 86 in these proceedings forleave to apply for judicial review of that second decision of the Board, and in his supportingaffirmation of the same date he merely put forward the same eight grounds as before in his previous application under HCAL 123/2015 which were all rejected by Li J.

11.  At the oral hearing of his application now before me, the applicant confirmed that he relies on the same grounds as before to challenge the second decision of the Board without making any further representation or submission.

12.  In my consideration of the merits of the same eight grounds of the applicant in support of his application now before me, it would be relevant to first refer to the following passages of the decision of Li J in his refusal of the applicant’s application relating to his claim under BOR 2 risk:

“ 44. The applicant mentioned the right to life (article 2 of BORO) in his grounds of review. He claimed that he might be subject to extra-judicial killing if deported to India. This ground was never raised before the Director or the TCAB.

45. Article 2(1) of the Bill of Rights Ordinance (BORO) safeguards the right to life—every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. ….

47. A State should take appropriate steps to deter offences against a person and to prevent such risk to life by putting in place effective criminal-law provisions backed up by law-enforcement machinery. However, it mustbe established that the authorities knew or ought to have known at the time ofthe existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. (Osman v UK, ECHR judgment of 28 October 1998, §§115 – 116)

48. So far as this case is concerned, the considerations under the present USM include those considerations under Article 2. There is no need to treat this right separately.

49. In my view, the story of the applicant fell far short of the above requirement. The applicant was caught in a personal loan dispute. There was only verbal threat. His life was not at risk.

50. There was no evidence that the government knew or ought to have known that his life was at risk. Both the Director and the Adjudicator found that the Indian government was able to provide reasonable protection to its citizens. The claim under Article 2 BORO failed.

51. Having considered the decisions of the Director and the Adjudicator, I agree with their reasoning set out above. The story of the applicant was not credible. I reject the grounds of review set out in the Form 86. There is no error of law or procedure.

52. In my judgment, the Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.” 

13.  As noted above, there was no appeal by the applicant against that decision.  In his application now before me, the applicant presented no additional facts or submission relevant to his claim under BOR 2 risk, of which the Director correctly considered that he had failed to establish any personal and real risk upon his return to India, and as found by Li J above, his grounds for which are not reasonably arguable as being just broad and vague assertions without any particulars or specifics or elaborations relevant to his claim under BOR 2 risk, and of which I am similarly unable to find any basis or merit in any of them.

14.  Further, the fact that it has been established by both the Director and the Board in their respective earlier decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

15.  In the premises and having proceeded to consider the second decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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