KHAN IRFAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2805/2018

[2020] HKCFI 1751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2805 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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Adjudicator of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is an Indian national. He arrived in Hong Kong on 25 February 2014 as a visitor and was permitted to stay until 4 March 2014. He overstayed and surrendered to the Immigration Department on 5 March 2014. On the same day, he applied for non‑refoulement claim.

3.  His reason for his application is that if refouled, he would be harmed or even killed by his creditor Dilip, a money lender, because he could not repay the loan to him.

4.  The applicant claimed that he had borrowed money from Dilip to run his business. It was agreed that he would have to pay interest every month to Dilip. However, Dilip changed the term of repayment unilaterally and demanded him to pay the loan, which he was unable to comply with. Dilip had threatened that he could do anything to him if he failed to complied with his demand. Dilip had on one occasion slapped him and pushed his mother on the ground. He was so scared that he left India to avoid Dilip.

The Director’s Decisions

5.  The Director considered his application first in relation to the following risks:

a.risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c.risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

6.  By Notice of Decision dated 10 September 2015 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

7.  By a letter dated 30 November 2016, the Director further asked the applicant to supply him with further information in relation to Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”).

8.  Since the applicant had provided no further information to the Director, the Director, by Notice of Further Decision dated 10 January 2017 (“the Director’s Further Decision”) rejected his claim on the ground that his claim was not substantiate under BOR 2 risk.

The Board’s Decisions

9.  The applicant appealed to the Board.

10.  Pursuant to section 12 of Schedule 1A of the Immigration Ordinance, Cap 115, it is within the Adjudicator’s discretion that the Board may determine an appeal without hearing, having regard to the material before it and the nature of the issues raised, if it is satisfied that the appeal the appeal can be justly determined without a hearing.

11.  The Adjudicator, having considered the applicant’s case, decided to assess his application without a hearing.

12.  By Decision dated 11 November 2016 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

13.  The Board considered the applicant’s evidence and found the facts below.

a.The applicant’s predicament arose from a personal and private loan arrangement between him and Dilip. He was slapped and threatened on only one occasion by Dilip and was not injured [27].

b.His evidence that Dilip was very influential was only hearsay evidence, to which the Board attached no weight [28].

c.On the totality of the evidence, the Board was not persuaded, even to the low level required, that the applicant would face a risk of being subjected to ill‑treatment of any sort, if he was refouled to India [30].

d.The applicant’s evidence in relation to non-availability of reasonable state protection and the possibility of internal relocation in India was fanciful and based solely on speculation. The Board was unable to attach any weight to his evidence [31].

e.On the evidence available, the applicant’s claim failed under persecution [36], BOR 3 risk [38] and Torture risk [42].

14.  The applicant also appealed to the Board against the Director’s Further Decision. But he was out of time. The Director’s Further Decision is dated 10 January 2017. The applicant filed the Notice of Appeal on 21 February 2017. By another Decision dated 27 November 2018, the Board dismissed his application for the reasons below.

15.  The Board did not accept that the applicant did not receive the Notice of Further Decision from the Director. It held that he had received the letter at his residential address, which had not changed at any stage during the relevant time. It found that the applicant had no satisfactory explanation for the delay in filing the Notice of Appeal or an explanation to cover the whole of the period of delay. It held that there was nothing in the facts relied on by the applicant which might amount to special circumstances by reason of which it would be unfair or unjust not to allow the late filing of the appeal/petition against the Director’s Further Decision.

16.  However, the Board also said that in case there might be other relevant matters of fact which might explain his delay in filing the notice, the Adjudicator had considered the factual basis of his claim as outlined in the Board’s Decision.

17.  The Board had, therefore, considered the merits of the applicant’s case as required by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019.

Application for leave to apply for judicial review

18.  In his Form 86 dated 7 December 2018 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Board’s Decisions dated 27 November 2018.

19.  In his affirmation in support of his application, the applicant relied upon the grounds below.

1.There was no hearing for his appeal against the Director’s Further Decision and, in particular, the Board refused to grant him the extension of time for late filing without giving him an opportunity to explain.

2.There was no legal or language for him – procedurally unfair to him.

3.It was unreasonable for the Board to assume without a hearing that he had been advised by the duty lawyer that he should provide all information in a timely manner as it was at the early stage of the proceedings.

4.It was unreasonable for the Board to assume that he had received the BOR 2 letter at his residential address, considering that it was an ordinary mail which was highly possible to misplace and it was not a registered mail.

5.The Board’s Decisions were not read to him and there was no translation for him. Although he had obtained assistance from his friend, he was not certain if his friend had translated everything to him.

DISCUSSION

The Board’s Decision dated 27 November 2018

20.  The applicant appeared before me. He said that he was detained in prison because he had worked illegally in Hong Kong. He also complained that the Board had not provided him with a hearing.

21.  I have considered the facts and findings in the Board’s Decision.

22.  The Board was entitled to assume that the applicant had received the BOR 2 letter from the Director (the Director’s Further Decision) under section 37ZV of the Ordinance:

Notices

(1) A notice or other document (howsoever described) required to be served or given (howsoever described) by the Director, an immigration officer or the Appeal Board on or to another person under this Part may be served on or given to that other person—

(a) …;

(b) by leaving it for the person, or by sending it by post addressed to the person—

(i) if the person is a claimant, at the last known residential or correspondence address provided by the claimant to the Director or the Appeal Board under section 37ZA(2);

23.  The Court of Appeal held in Re: Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018 §22 that the applicant is not entitled to free legal representation at every stage of the proceedings as he had obtained free legal representation at the screening stage.

24.  The Non-refoulement Claim Form, in which the applicant had to fill in the facts and particulars provides that the applicant has the responsibility to disclose fully all the facts with details in support of his application. It is reasonable for the Board to assume that the applicant’s lawyer had properly advised the applicant of this responsibility. In fact, the applicant has not argued that he did not know that this is his responsibility in his grounds in support of this application.

25.  The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 at §16 that high standard of fairness does not require provision of language assistance or translation to the applicant at all stages of the proceedings. Of course, the court usually provides interpretation service in the court hearings.

26.  For the reasons above, it is obvious that all of the applicant’s grounds fail.

27.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

28.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his 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