ASGHAR SAYEED v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 856/2017

[2018] HKCFI 1146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 856 of 2017

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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 43-year-old national of India who arrived in Hong Kong on 30 January 2014 with permission to remain as a visitor up to 13 February 2014 when he did not depart and instead overstayed until 10 June 2014 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 12 June 2014 with the Department on the basis that if he returned to India he would be harmed or killed by NG the leader of rival political party Bhartiya Janata Party (“BJP”) and his people.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Musheerabad, Hyderabad, Andhra Pradesh, India to a Muslim family where his parents and siblings as well as his wife and children still live.  After graduating from college the applicant had worked in marketing for an electronic company, as a partner in a manufacturing company, and as a manager of an insurance company before coming to Hong Kong.

3.  In 2009 he joined a political party known as All India Majlis-e-Ittehadul Muslimeen (“AIMIM”) as an ordinary member responsible for recruiting members in his home district of Musheerabad.  In October 2012 a riot broke out between Muslims and Hindus, and afterwards the applicant gave a statement to the police that he saw NG the leader of rival BJP and his men attacking the Muslims and burning their houses during the riot, and as a result NG and his men were arrested by the police but were subsequently released on bail.

4.  One day in January 2013 while the applicant was on his way home from work, he was ambushed and attacked by several of NG’s men who blamed him for making the report to the police against their leader, and as a result the applicant suffered injuries with cuts to his face and bruises all over his body and for which he was taken to the hospital for treatment, but he did not report the matter to the police.

5.  Thereafter NG and his men would utter threats against the applicant every time they ran into him on the street, and the applicant became so frightened that he did not dare report to the police for fear of revenge from NG, and in June 2013 he decided to take shelter at his friend’s place in Gulbargha and later in Singapore and Malaysia, and when he eventually returned to India, he tried to get the leaders of AIMIM to arrange a truce with NG and his BNP supporters but to no avail as NG insisted that he would take revenge against the applicant.  After discussing with his wife, the applicant decided to leave India for his own safety, and so he arrived in Hong Kong on 30 January 2014 and subsequently lodged his non-refoulement claim with the Immigration Department, for which he completed his Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 13 May 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 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 decision the Director on the facts of the applicant’s case assessed the risk of harm from NG and his people as low due to the low intensity and frequency of past ill-treatment from them as indicative of low future risk upon his return to India, that his dispute with NG was a private personal matter and in the absence of any reliable evidence of the state or police being involved in the threats from NG and his people that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a population of 1.2 billion spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the applicant to move to areas away from his home district such as Mumbai where he can live and work without any risk of harm from NG or his men.

8.  By a Notice of Further decision dated 30 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation 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”).

9.  By then the applicant was already in the process of his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 27 May 2016, and for which he attended an oral hearing on 11 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board accepted that the applicant may have a dispute with NG but doubted even on his own case that NG intended to cause any serious harm or even to kill him, and agreed with the Director that state or police protection would be available to the applicant, and concluded that he faces no genuine or substantial risk of being harmed or subjected to ill-treatment if refouled to India.

11.  On 8 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he set out his grounds for his intended challenge as follows:

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

(2) lack of language assistance in providing him with a translation of his NCF for him to find out if the interpreter had properly translated the basis of his claim before the Board;

(3) failure to give reasons for rejecting his claim under BOR 2 risk;

(4) wrongful exercise of case management power in relying on COI to assess reforms in India as to police corruption; and

(5) lack of fair hearing in dealing with his claim for not requiring the attendance of the Director at his appeal hearing before the Board. 

12.  For his complaint in ground (1) of lack of 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: see 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.

13.  The applicant already had the benefit of legal representation in presenting his case to the Director, and that he was able to give evidence and made further representation to the Board at the oral hearing of his appeal.  Even now at the hearing of his leave application before me, the applicant was able to make representation of his claim with any difficulty, and I do not find anything amiss arising from the lack of legal representation in the process of his appeal to the Board.  

14.  As for ground (2) in which the applicant complains of not being provided with a translation of his NCF so that he could find out if the interpreter had properly translated the basis of his claim, it is clear that his NCF was completed on his instructions with legal representation and that he was assisted by an interpreter during his appeal hearing before the Board, and in the absence of any particulars or specifics from him to demonstrate that the basis of his claim had indeed been wrongly interpreted, I find this ground of his simply speculative and without merit.

15.  Ground (3) of the applicant in which he complains that no reasons were given for rejecting his claim under BOR 2 risk is plainly wrong as the Director in his Notice of Further Decision which specifically dealt with the applicant’s claim under that risk as well as the Board in its decision which dealt with that claim under BOR 2 risk together with other applicable grounds did give their reasons for rejecting the applicant’s claim.  There is therefore no basis for the applicant to make his complaint in this ground.

16.  As for ground (4), the applicant has failed to provide any particulars or specifics as to how and where did the Director or the Board get it wrong in their reliance of COI in assessing the reforms undertaken in India to deal with police corruption, and in the present case it is the applicant’s own evidence that he did not report any of the threats from NG to the police, hence any issue of police corruption clearly did not arise in his case, and I do not see merit in this complaint of the applicant either.

17.  As regard the last ground of the applicant in which he complains of lack of fair hearing in not requiring the attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting the Director’s presence, as the mechanism for the appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he would be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board.  There is simply no merit in this complaint of the applicant.

18.  In the premises and having considered 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.

19.  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