MOHAMMAD ZIAUL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 812/2017

[2018] HKCFI 748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 812 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 30-year-old Indian man who entered Hong Kong on 17 November 2014 with permission to remain as a visitor until 1 December 2014, but he did not depart and overstayed until 3 December 2014 when he was arrested by the police and later referred to the Immigration Department for investigation.  On 4 December 2014 he raised his non-refoulement claim on the ground that he would be harmed or killed by his uncle over a land dispute if he is to return to India.  He has since been released on recognizance.

2.  The applicant was born and raised in Shahalipur Guddu Village, Uttar Pradesh, India as the eldest son of his family of five children and where his father owned a piece of farmland.  After receiving nine years of education the applicant started working as a farmer for his father, and then on his own after his father in early 2014 gifted him 10 acres of land adjacent to their village for him to grow rice, sugar and wheat.  He is single.

3.  One day in August 2014 his father’s brother MR who has his own land but also coveted the applicant’s farmland came to his home to demand that he transfer his land to him, and when the applicant refused he kicked and punched him all over the body before he left with a warning that he would kill him next time if he still refused to do as he demanded.  As a result the applicant suffered bruising and other injuries for which he went to the village hospital for treatment, but he did not report the matter to the police because MR is a good friend of their village head HU who is influential with close connection to the ruling Bharatiya Janata Party (“BJP”), and so he did not believe that the police would do anything about his complain.

4.  In about October 2014 MR again came to the applicant’s home to demand that he transfer his land to him, and this time he was accompanied by HU who advised the applicant to do as MR said as otherwise he would be killed, and when he still refused, they left angrily.  The applicant was however fearful for his life and decided to leave India by first travelling by bus to Delhi and from there he flew to Hong Kong on 17 November 2014 with no further contact with his family in India since, and subsequently raised his non-refoulement claim. 

5.  The applicant then completed his Non-refoulement Claim Form (“NCF”) on 12 February 2015 with legal assistance under the Duty Lawyer Service, and subsequently participated in a number of screening interviews with the Immigration officer.  In his supplementary answers dated 26 February 2016 to questions raised by the Department after failing to attend in person a number of scheduled interviews, the applicant revealed a further incident said to be relevant to his claim that prior to MR’s demand for his land in 2014, the applicant was in Muzaffarpur City in Bihar State in 2013 supplying garment to different shops when he was falsely accused of possessing dangerous drug and was detained by the police for seven months before he was eventually released on bail, during which he was told that it was MR and HU who made the false claim against him which he believes was part of MR’s scheme to steal his land, and that as he was told that there is an outstanding court warrant issued against him in India for having absconded from his bail, it is a further reason why it would not be safe for him to return to India.  

6.  By a Notice of Decision dated 23 August 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on then all 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 (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 detailed decision the Director first found the applicant’s claim of MR’s false accusation against him in Muzaffarpur City as inherently impossible as at that time his father had not yet given him the land, and that it is incredible that he never mentioned such an important incident in his NCF in support of his claim until a year later in his supplementary answers, or that he was ever involved in the garment business in Muzaffarpur City at that time.

8.  The Director also raised issue with his allegation of an outstanding court warrant against him which is merely hearsay and in the absence of any documentary evidence which could easily be obtained with the assistance of his lawyers, and that with the availability of state protection he could return to India to face proper police investigation and a fair trial of the false accusation if indeed there is an outstanding warrant as alleged.

9.  The Director then concluded that even if the applicant’s claim about his dispute with MR over his land is true including the Muzaffarpur incident, it is a private and localized dispute and in the absence of any evidence to suggest that MR and HU are state agents, objective Country of Origin information (“COI”) show that internal relocation alternatives are available and reasonable for the applicant to return to India with a huge population of more than 1,251 million people spread across 3,287,000 square kilometers, in cities such as Delhi where it would not be unduly harsh for him to live and work safely from any threats from MR or HU. 

10.  By a Notice of Further Decision dated 25 July 2017 the Director rejected the applicant’s claim again in the absence of any response from him to an earlier invitation to submit additional information which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article (“BOR 2 risk”).

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 1 September 2016, and for which he failed to attend the scheduled hearing on 30 August 2017 before the Board which proceeded to consider his appeal on paper.  On 16 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board first noted in great details of the applicant’s case presented to the Director with the assistance of legal representation including all his statements and materials provided to the Department during that process as well as the records of his two screening interviews with the Immigration officer, and then proceeded to consider the applicant’s claim to have been inconsistent or contradictory in various important respects of his dispute with his uncle over his land as set out from paragraphs 45 – 56 of his decision including those already raised by the Director.  The Board also found it incredible that if the applicant did in fact have any serious concerns about his safety in the event he had to return to India, that he would not have contacted his family in order to establish what if anything had happened since he left, and whether the dispute over his land was still going on, which caused the Board to doubt whether he does in fact hold any subjective fear for his safety in India.

13.  The Board concluded that whilst some of its identified concerns may not individually be significant enough to undermine the applicant’s credibility, when viewed in their totality they led the Board to conclude that the applicant’s account as fundamentally flawed and should be rejected in its entirety, but that even if his claim with respect to the threats from MR and HU were genuine, it agreed with the Director that the applicant could safely relocate to another part of India such as Delhi where he would not face any such threat, noting that he had stayed there without any incident before coming to Hong Kong. 

14.  On 27 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of the decisions of both the Director and the Board, and in his supporting affirmation of the same date he set out his grounds which can be summarized as follows:

(a) procedural unfairness due to the Board’s failure to re-schedule another oral hearing for him after he was too ill to attend the one fixed on 30 August 2017 and despite his subsequent explanation with apology and his request for another hearing;

(b) failure of the Board to properly consider that there is still a real risk to the applicant from MR and HU and by the letter’s association from BJP upon his return to India; and

(c) failure of both the Board and the Director to conduct any or proper inquiry into the relevant COI in their assessment of his claim.

15.  For the applicant’s complaint under ground (a) of not being given a re-scheduled oral hearing, the Board did give its following reasons for not acceding to his request:

“ 8. A Notice of Hearing was sent to the Appellant on 6 July 2017. A file note made by an officer of the Board Secretariat indicates that the Notice of Hearing was followed up a number of attempts to contact the Appellant by calling the last telephone number he had provided to the board in the Notice of appeal/Petition. Two such attempts were made on 29 August 2017 and a further attempt on the morning of 30 August 2017. A message was also left for the Appellant asking him to call the Secretariat, but he did not do so, and nor did he appear at the scheduled hearing time and date, Wednesday 30 August 2017 at 2:30 pm.

9. A letter was then sent to the Appellant on 30 August 2017 inviting him to explain his non-attendance at the scheduled hearing, and provide any supporting documentation within seven days of being notified of the invitation.

10. On 5 September 2017, the Board received a letter from the Appellant apologizing for his failure to attend the scheduled hearing. The letter, in somewhat unclear English, indicates that although Appellant did not have a serious condition on the day of the hearing, he felt feverish and dizzy and took medicine before the doctor prescribed paracetamol. The letter also refers to vertigo. The appellant states that he slept the whole day and nobody woke him up, nor did his friend disturb him. Consequently, he wasunable to inform the Board of his condition. He states that he will not repeat this behavior, and asks for another chance. No medical certificate was provided, but the letter does provide a new telephone contact number for the Appellant.

11. The Board has carefully considered the Appellant’s explanation, but for the following reasons is disinclined to accept it.  The Appellant himself notes that his condition was not serious.  Despite this, he failed to contact the Board either prior to or on the day of the hearing to say he would not be able to attend, nor did contact the Board after the hearing to explain his absence until requested to do so. His letter does not make clearwhen he consulted a doctor, but it seems to the Board that if he had done so prior to the day of the hearing, he could have contacted the Board at that point to foreshadow his possible non-attendance, whereas if he did so on the day of the hearing, then clearly he was not asleep for the whole day as he claims.  Either way, if he were in fact suffering from a medical condition justifying his non-attendance, he could have obtained and submitted a medical certificate as evidence of his claimed medical condition and consequent unfitness to attend the hearing.  For these reasons, the Board considers that the Appellant has failed to provide a satisfactory explanation for his absence from the scheduled hearing.  Consequently, the Board has determined the Appeal without a hearing pursuant to section 15(3)(b) of Schedule 1A of the Immigration Ordinance.”

16.  From these it is clear that the adjudicator was not satisfied with the applicant’s explanation for his absence from the scheduled hearing by raising questions over various things that he believed that the applicant could or should have done if he genuinely did have a medical condition, such as contacting the Board before the hearing to foreshadow his possible non-attendance, or after the hearing with an explanation and to provide a medical certificate.  In other words, the adjudicator was not convinced that the applicant has told the truth about his non-attendance, and decided that it was not necessary to re-schedule another oral hearing and that he could proceed to consider the applicant’s case on paper.

17.  Whilst there is no absolute entitlement to oral hearing, it is ultimately a question of fairness in the circumstances of each case, as held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, when Cheung CJHC stated 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.”

18.  His Lordship then went on to consider the relevancy of oral hearing to screening torture claimants:

“ 37. Generally speaking, the screening of torture claims is no different than others. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Obviously, each case would turn on its own facts, and it is neither desirable nor possible to set out exhaustively what the relevant considerations are or may be. Nonetheless, in most if not all cases, there are several matters, which overlap to some degree, which the adjudicator should bear in mind.

38. First, the interest at stake and the potential consequence of the decision. This has been emphasised in the recent authorities referred to above. In the context of a CAT claim, what is involved is the fundamental human right of the claimant to be free from torture. This is an absolute human right, which admits of no exception. It may be recalled that in the parole board cases, what was involved was a conditional right to liberty created by statute. Here, one is concerned with a fundamental right to be free from torture. The other side of the same coin is that the potential consequence of the adjudicator’s decision is grave. As has been mentioned many times, life and limb are potentially at risk, and thus the high standards of fairness required in the first place. This a weighty consideration favoring the holding of an oral hearing.

39. Furthermore, as has been pointed out in the authorities, high standards of fairness require the Director, or for that matter, the adjudicator to adopt an active role in screening a CAT claim. They are not permitted to simply sit back and put the torture claimant to strict proof of his claim. Depending on the facts, it may be appropriate for them to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the claimant. For instance, where it is readily apparent that something has gone amiss such as the proof documents in Prabakar that the applicant there had mentioned but was unable to produce and did not produce, or that a point has obviously been overlooked or missed out. On the other hand, there may be no duty to keep probing or inquiring where the objective circumstances make it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention. The exercise of determining whether a torture claim is valid is one of ‘joint endeavor’. Prabakar, [54]; TK v Jenkins [2013] 1 HKC 526, [21], [24] and [25]. In the present context of whether to hold an oral hearing, a very practical result of all these requirements based on the high standards of fairness involved is that if any of these requirements cannot be fully satisfied without an oral hearing—and the torture claimant should be given the benefit of any doubt, an oral hearing should be held.

40. Secondly, an adjudicator should ask himself whether there is anything in the torture claimant’s story, the evidence and information available, the legal issues raised, the arguments mounted, the decision of the Director, the written petition of the claimant, and so forth, which is material to the determination of the CAT claim, and which high standards of fairness would require the torture claimant to be given an opportunity to be heard orally (or further in writing), before a decision is made on the torture claim.  For instance, if there is any point, factual or legal, that is troubling the adjudicator, which the adjudicator is not sure that an oral hearing or further submissions from the applicant cannot help answer or otherwise clarify, that is a strong pointer towards an oral hearing or (where appropriate) further written representations.  An adjudicator simply cannot assume, no matter how good the legal representative of the torture claimant may be, that the legal representative (or for that matter, the torture claimant) would be able to foresee all the points that might be troubling the adjudicator after reading the petition and supporting material.”

19.  As set out in details in both the decision of the Director and the Board, notwithstanding the fact that the applicant had had legal assistance and representation under the Duty lawyer Service as from December 2014, his screening process before the Director including interviews by his officer was not completed until April 2016 as a result of repeated cancellations, postponements or suspension of the scheduled interviews due to his alleged sickness but none of which was ever supported by any proper medical report or certificate despite being reminded by the Director in writing to his lawyer for him to do so.

20.  The fact is that the applicant eventually and in the presence of his legal representative attended two screening interviews by the Director’s officer plus further opportunities to submit additional materials and supplementary answers to questions through his lawyers to the Director.  Hence when he brought his appeal before the Board but again failed to attend the scheduled oral hearing on 30 August 2017 alleging sickness without the support of any medical certificate or evidence, a requirement no doubt by then already well known to him, I agree that the adjudicator was entitled to take all these into account in his decision not to schedule another oral hearing and instead to proceed to consider the applicant’s claim on paper.

21.  Ultimately, as held in ST, supra, what is in issue is the question of fairness, and in the present context, high standards thereof are involved.  Given the amount of information and materials already provided by the applicant with legal representation to the Director and then before the Board, and with the clear findings by both the Director and the Board of the risk to the applicant arose from a private localized dispute without any evidence to suggest any sanction, involvement or acquiescence by the state or government of India and that internal relocation alternatives are available and reasonable for him to return safely to other parts of India, I do not see any prospect of success for the applicant to argue procedural unfairness in the Board’s decision not to conduct an oral hearing in its consideration of his claim.

22.  As for the other two grounds, both of which are such broad and vague statements that in the absence of any particulars or specifics provided by the applicant, I am unable to see any basis or merit in either of them.  Nevertheless, fairness requires that I proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, and in which I do not find any error in law or procedural unfairness committed by either of them, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

23.  In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I 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

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