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

HCAL 335/2018

[2018] HKCFI 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 335 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:

Procedural history

1.  The Applicant entered Hong Kong legally on 11 November 1996 but was not arrested by the police until 10 May 2013.  He was transferred to the Immigration Department the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 12 May 2013.  He was released upon recognisance on 20 June 2013.  His NRF claim form was submitted on 9 July 2013 and his supplementary claim form was submitted on 2 August 2016.

2.  The Applicant attended a screening interview on 18 September 2013.  His original NRF claim was refused on 30 September 2013.  He attended a further screening interview on 2 September 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 9 September 2016 and by Notice of Further Decision (re BOR 2) on 11 October 2017.  The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard his appeal on 20 December 2017 and considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 9 February 2018.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 2 March 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The Applicant is an Indian national.  He was born on 2 March 1967 in Kolkata.  Since 1989, the Applicant had been engaged in a trading business importing electronics and garments from overseas.  In 1992, the Applicant and his associates, borrowed money from a Mr Rafique to expand his business.  The loan was to be repaid with interest within the year.  When this could not be repaid on time, the Applicant negotiated new terms and repayment over three to four years.  He failed to pay this and therefore moved in order to avoid payment because Rafique had been pressing for the return of his money.  Rafique and his associates made threats to kill the Applicant when they made enquiries of his family to find out where he was.  Rafique also threatened to frame the Applicant.  The Applicant maintains that Rafique had his brother killed in 1996 in order to teach the Applicant and his family a lesson.  On another occasion in 1996, the Applicant and his business partners were assaulted by Rafique and a group of 10 men carrying choppers, knives, guns and drop bombs.  The Applicant was attacked by three to four of the men with knives and his left palm and right cheek were injured before the Applicant could flee.  He went to hospital and required stitches in his wounds.  The Applicant went into hiding and although his family lodged a complaint with the police, nothing was done and the Applicant decided to come to Hong Kong.

The non-refoulement claim

5.  Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. 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”).  Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6.  It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and Further Decision of the Director

7.  The Director analysed the Applicant’s claim on all applicable grounds on two separate occasions as outlined above.  He considered a wide range of documentary evidence.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director.  In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 and was invited to make submissions thereon. He did not do so.

Decision of the Adjudicator

8.  The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator was highly sceptical of the story relied upon by the Applicant which was inconsistent in material respects but in any event, the injuries sustained were limited as were the number of occasions of actual harm.  There was no suggestion of improper government intervention and the allusions to political parties were irrelevant.  According to the Applicant, Rafique was rich and powerful because he was a money lender not because of any political affiliation.  This was a private dispute over an unpaid loan.

Leave to apply for judicial review

9.  Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10.  The grounds of review are apparently limited to the BOR 2 process.  The Applicant complains that he was not asked to make further submissions in respect of BOR 2; that he should have had assistance from the Director of Legal Aid (“DLA”) for BOR 2 because the refusal of legal aid was made prior to the BOR2 proceedings and, lastly, that he should have been given legal representation and an interpreter despite being resident in Hong Kong for 20 years.  There is a possibility, that I have misunderstood the latter complaint as being in relation to BOR 2, when in fact the Applicant seeks to refer to representation on appeal and therefore I have considered both.

11.  The Applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

12.  The Applicant stated that he had been in communication with the authorities for many years.  He should have received the letter of 5 July 2017, which was sent to the correct address. He has given no reason for why this would have resulted in him being unaware of the proceedings.  In any event, BOR 2 is a limited head of claim.  Nothing arising from the facts relied upon by the Applicant suggest that there would have been any merit in a claim under BOR 2.  Indeed, any such suggestion could have been dealt with before the Adjudicator and it was not.  There is no merit in this ground of review.

13.  In so far as the Applicant suggests that he should have had legal representation and an interpreter before the TCAB, there is no absolute right to legal representation upon appeal.  It is a matter for the DLA, who considers applications for assistance on a case by case basis.  If the Applicant was prejudiced by a lack of interpreter, despite having been in Hong Kong for 20 years, then I am surprised he did not raise the issue with the Adjudicator.  Indeed, the quotes provided by the Adjudicator of the submissions of the Applicant during the hearing, suggest his command of English is acceptable.  Having heard him, the Adjudicator was sceptical of his veracity and more sceptical over the fact that he had taken 17 years to make a claim.  No doubt this was also a reason for the refusal of legal aid.  There is no merit in the suggestion that the Applicant was prejudiced in his appeal by reason of lack of legal representation or an interpreter.  He was fully able to understand the proceedings and make submissions.

Conclusion

14.  I have considered the papers and grounds carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

15.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave 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