KHAN ASFAQUE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL826/2018

[2019] HKCFI 2168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 826 of 2018

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 be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of India. He is now aged 32 (DOB: 1 February 1987). 

2.  The Applicant claimed he would be harmed or killed by his creditor because he was unable to pay back his loan. He later also claimed he was a supporter of the All India Trinomool Congress Party (“TMC”) and his party had problems with its enemies.

3.  The Applicant said he started a business with his partner Murtuza in 2013. They sold electronic goods. In 2014, they wanted to expand their business so they borrowed 2 million rupees from Faiyaz Khan (“Khan”). Khan was a politician belonging to the Communist Party of India (Marxist) [“CPI(M)”] and the leader of Ward 75 in the Kidderpore District. Khan had strong ties with the police.

4.  The Applicant and Murtuza had to repay Khan by instalments. They missed payment in July 2015. Khan came to their shop to press for payment. Murtuza disappeared to evade lability. Khan attacked the Applicant. He later came more often with some men to press for payment.

5.  In August 2015, Khan threatened to kill the Applicant if he could not repay the outstanding amount.

6.  On 2 October 2015, the Applicant let India for Hong Kong. He returned to India on 14 October 2015. He did not stay in Hong Kong for protection at that time because he thought he could make Khan understand his situation.

7.  After the Applicant had returned to India, Khan came to his shop. He was with another man. They forced the Applicant into a car and took him to an unknown place. There Khan assaulted the Applicant and threatened to torture him. He eventually let the Applicant go.

8.  The Applicant went to live with his friends. He only returned home occasionally. The Applicant once came upon Khan and his men. They attacked him. Some neighbours came to the Applicant’s rescue. Khan left with his men.

9.  The Applicant made a report to the police. The police said Khan would not harass him anymore and the Applicant should not pursue his complaint. The Applicant thought the police refused to help him because Khan was a powerful politician.

10.  On 27 November 2015, the Applicant again left India for Hong Kong. His visitor visa expired on 12 December 2015. The Applicant surrendered to the Immigration Department two days later on 14 December 2015. He lodged a non-refoulement claim subsequently.

11.  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 rejected the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk,[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].

12.  On 11 May 2018, the Applicant applied for leave for judicial review.

Respondent/Interested party

13.  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 complaint on a rehearing basis.

14.  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]

15.  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

16.  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 considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

The Board's decision

17.  The Applicant appealed to the Board. The Adjudicator interviewed him on 5 February 2018.

18.  The Adjudicator found the Applicant’s evidence was vague and evasive. There were inconsistencies in his allegations. The Applicant stated in his statement to the Director the interest rate of Khan’s loan was 3% but he said in the hearing that it was 10 %. Also, the Applicant said in the hearing that between August and October 2015 Khan kept on harassing him. However, there was no mention in his NCF (non-refoulement claim form) that Khan came to look for him between mid-August and October 2015.

19.  The Adjudicator found it puzzling that Khan would kidnap the Applicant. The alleged act seemed to serve no purpose. The Applicant also gave conflicting numbers of the people acting with Khan on that occasion.

20.  The Adjudicator noted that the Applicant had been to Hong Kong in October 2015. If Khan had been treating the Applicant so badly, there was no reason for the Applicant to think it was safe for him to return to India then because Khan would understand his situation.

21.  As to the Applicant's alleged fear of TMC’s rivals, the Adjudicator considered it was vague. Such allegation was only raised with the Adjudicator but not before the Director.

22.  The Adjudicator did not believe the Applicant's claim of fear of Khan or TMC’s rivals. He did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.

23.  On 13 April 2018, the Adjudicator rejected the Applicant's appeal with respect to all the four applicable grounds.

Grounds of judicial review

24.  The Applicant complained the Adjudicator unlawfully fettered his 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.

25.  The Applicant complained there was a lack of legal representation and language assistance for his appeal to the Board.

26.  The Applicant said 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.

27.  The Applicant also complained the Adjudicator had taken into account outdated cases, information not officially recognised or simply hearsay.

Court hearing

28.  The first hearing was scheduled for 20 August 2018. The Applicant was absent. He was contacted on the phone. He claimed to be sick and said he had to go to the hospital.

29.  The court later received a document from the Applicant regarding his attending the Accident & Emergency Unit at Queen Elizabeth Hospital in the morning of 20 August 2018.

30.  The court refixed the hearing to 26 September 2018. The Applicant was informed by a notice sent to his reported address. He was absent again. This time, he could not be contacted on the phone.

31.  The court has not heard any explanation from the Applicant for his absence on 26 September 2018.

Discussion

32.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33.  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]

34.  The Applicant complained there was a lack of legal representation and language assistance for his appeal to the Board.

35.  The Applicant was represented by the Duty Lawyer Service up to the Director's decision dated 23 January 2017.

36.  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 his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

37.  The Applicant raised his language problem.

38.  It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]

39.  In the current application, the Applicant had Form 86 and the affirmation prepared in English. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. He was also assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also during 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’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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 said he received the appeal bundle on or about 29 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 5 February 2018. 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.[12] That means he knew what was asked and how to answer. He was not confused.

46.  There was no evidence the Adjudicator had taken into account outdated cases, 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 his finding and decision which were not Wednesbury unreasonable. He 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. He 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 prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.

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] 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, paras 31-45.

[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]  See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].

 [10] 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.

[11] 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 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.

[12] The Applicant's affirmation, Point 8 on page 3.