MOHAMMED HAFIZUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 83/2018

[2018] HKCFI 2740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 83 of 2018

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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 34-year-old national of India who last arrived in Hong Kong on 22 August 2006 with permission to remain as a visitor up to 25 August 2006 when he did not depart but instead overstayed until he was arrested by police on 21 March 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 a loan shark for failing to repay his debt.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Khidder Pur, Kolkata, West Bengal, India.  After leaving school he assisted in his brother’s garment business and frequently took business trips to Hong Kong.  In one of such trips he met a man SF in Hong Kong who was also in the garment business and the two formed a partnership in their own garment business.

3.  However, in 2006 as their business faltered with serious losses in India, they considered starting another garment business in Shenzhen in China, and to fund his share of the business capital the applicant borrowed a loan from a loan shark in India SB known to be a local gangster with political connections with the Trinamool Congress Party (“TCP”), with the loan repayable within six months at an interest rate of 15% per month which was only made orally without any written loan agreement.

4.  In August 2006 the applicant paid his share of the business capital to SF who then travelled to Hong Kong to meet with a client in Shenzhen about their new business venture, followed by the applicant a few days later on 22 August 2006 but after he arrived in Hong Kong he was unable to find or contact SF until he received from a mutual friend in Hong Kong a note from SF claiming that he had lost all their money and was too ashamed to meet the applicant.

5.  As the applicant was unable to make any further contact with SF, he telephoned SB in India informing him that he had lost his money and with no new business in Shenzhen or Hong Kong he would not be able to repay his loan, to which SB threatened to kill him if indeed he failed to do so, and when he was later told by his family that SB had subsequently come to his home in India with his gang looking for him and made similar threats to kill him for failing to repay his loan, the applicant decided that his life would be in danger if he were to return to India and therefore overstayed in Hong Kong, and upon his subsequent arrest by the police he lodged his torture claim which was later taken as a non-refoulement claim upon the commencement of the unified screening mechanism, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 30 July 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 the Hong Kong Bill of Rights (“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”).

7.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from SB upon his return to India as low due to the absence of past ill-treatment from him other than some verbal threats, that it was in any event a private dispute between the two of them that in the absence of any official involvement state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district such as Delhi where it would be difficult if not impossible for SB to locate him.

8.  The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 24 November 2014 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 11 May 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board upon hearing the applicant in evidence rejected his account of his business arrangements with SF as vague, contradictory and incredible, and therefore found his claim that he had as a result borrowed a loan from a loan shark and was in fear of being harmed or killed by the loan shark upon his return to India not worthy of belief and accordingly dismissed his claim.

10.  By a letter dated 22 December 2016 the Director on his own initiative invited the applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from him proceeded to consider his claim including his claim under BOR 2 risk, and by a Notice of Further Decision dated 11 January 2017 the Director again rejected his claim under all applicable grounds.

11.  On 17 January 2017 the applicant again lodged an appeal to the Board against that Further Decision of the Director, for which the Board did not find it necessary to schedule another oral hearing for the applicant and proceeded to deal with his appeal on paper.  On 4 January 2018 his appeal was again dismissed by the Board that having already rejected his account of having taken out the alleged loan from the loan shark that there was nothing in his appeal that gave any ground for believing that the Board might take a different view of his credibility, and accordingly in the absence of any additional supporting evidence found that the applicant has failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 risk being violated upon his return to India.

12.  On 17 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board which he specifically stated as the one dated 4 January 2018, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  lack of legal representation in his appeal before the Board;

(2)  lack of legal assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly; and

(3)  lack of hearing in the Board dismissing his appeal without any oral hearing so that he was unable to provide and explain all the new facts to the Board.    

13.  Although an oral hearing had been fixed for his application now before me at his request, the applicant did not appear at the scheduled hearing, for which he subsequent wrote a letter to court claiming not to have received any notice of the hearing and hence was not aware of the same, and requested another oral hearing for his application.

14.  As it is noted that the notice of hearing dated 2 August 2018 was sent to the applicant at his last known address by both registered post and ordinary post, but only the one sent by registered post has been returned by the Post Office marked “Unclaimed”, which indicates that the one sent by ordinary post would have reached the applicant and that he chose not to claim the one sent by registered post either at his address or at the Post Office.  In the premises I do not see any justification for expending any of the court’s time or resources to schedule another oral hearing for the applicant’s application, and proceed to consider those grounds put forward by him for his intended challenge.

15.  For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

16.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

17.  As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without basis.

18.  Regarding his last complaint of the Board not arranging an oral hearing for his appeal so that he could provide additional facts and make his presentation to the Board, as has been held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 that there is no absolute entitlement to oral hearing which is ultimately a question of fairness in the circumstances of each case, as Cheung CJHC (as he then was) explained in paragraph 26 of the judgment:

“ … there is no absolute right to an oral hearing. Amongst other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.”

19.  In the present case the applicant had as noted already been able to make full representation of his claim to the Director with legal representation, and also attended an oral hearing in person before the Board during which he was able to make further representation and answered questions from the adjudicator who for the detailed analysis and reasoning set out in paragraphs 34 – 50 of his decision rejected the applicant’s claim on his credibility, hence in the absence of any further or additional facts or materials presented by him for his claim under BOR 2 risk, the adjudicator was in my judgment perfectly entitled to find it unnecessary to schedule another oral hearing for the applicant’s appeal in respect of his claim under BOR 2 risk, and given the Board’s findings and rejection of the core of his claim as to either his alleged business arrangements with SF or his subsequent loan from SB, I agree with the adjudicator’s view that a further oral hearing would not and could not assist the applicant in making out any claim under BOR 2 risk or advancing his such claim.

20.  As it has been repeatedly emphasized by the Court of Appeal that the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, as judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

21.  Further, the fact that it has also been established by the Director in his first decision that the risk of harms from SB is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to other part of India, there is simply no justification affording him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

22.  In the premises and having proceeded to consider the 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.

23.  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