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HCAL 788/2018
[2019] HKCFI 1348
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 788 of 2018
BETWEEN
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Abdul Mannan |
1st Applicant |
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Roushan Ara |
2nd Applicant |
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Tashabbur Rahaman |
3rd Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicants:
1. The applicants are all nationals of India with the 1st and 2nd applicants being husband and wife respectively and the 3rd applicant being their son, who arrived in Hong Kong on different occasions as visitors and subsequently overstayed and separately raised their non- refoulement claim on the same basis that if they returned to India they would be harmed or killed by the creditor of the 1st applicant for failing to repay his loan. At their request their claims were assessed jointly together and that they were subsequently released on recognizance pending the determination of their claim.
2. The 1st applicant (“A1”) was born and raised in Kolkata, West Bengal, India. After leaving school he started a garment business in Kolkata in 1994 with a partner, and married the 2nd applicant (“A2”) who later gave birth to their son the 3rd applicant (“A3”) in 2000.
3. In 2002 the applicant’s relationship with his business partner turned sour over the financial matters of their business, and one day after a particularly heated argument his partner absconded with their company’s money and disappeared without a trace.
4. As a result A1 suffered great financial losses and had to close down his company. In order to make a living and to support his family, he in 2003 borrowed 700,000 Indian Rupees from a money-lender to pay an agent to arrange for him to go work in South Korea, and so he departed India on 7 July 2003 for South Korea via Hong Kong, and while in transit in Hong Kong his agent disappeared with his passport and money, and when he heard from A2 that the money-lender was looking for him in India chasing for repayment of his loan with threats of violence to kill him upon his return to India, and as the money-lender was an influential man with political connections with the then ruling party Trinamool Congress Party (“TCP”) in West Bengal, A1 became fearful for his life in India and so he overstayed in Hong Kong, and upon his arrest by the police in May 2008 he raised a torture claim and was subsequently released on recognizance pending determination of his claim.
5. Meanwhile in India the money-lender continued to harass and threaten A2 over A1’s debt, and on one occasion A2 was beaten by his men and was hospitalized for the bruises and swelling so caused to her body. After discharging from hospital A2 fled to Matiyapore to take shelter in her brother’s home without any further incidents or encounters with the money-lender or his men.
6. In March 2012 A2 travelled to Hong Kong to meet with A1 and informed him that as she had not experienced any threats from his creditor all these years, it would be safe for A1 to return to India, and therefore after A2 had left A1 informed the Immigration Department to withdraw his torture claim, but before he was repatriated to India, he received a further call from A2 that the money-lender had been able to locate her in Matiyapore and hence she had again become fearful for her life, and so A1 informed the Immigration Department that he would continue with his claim.
7. On 9 July 2012 A2 travelled to Hong Kong as a visitor but overstayed, and on 25 July 2012 she surrendered to the Immigration Department and also raised her torture claim on the same basis as A1, and four months later on 12 November 2012 A3 also came to Hong Kong and raised his torture claim on the same basis as his parents.
8. On 18 February 2013 the applicants completed a Torture Claim Form (“TCF”) jointly together, but when their torture claim was rejected by the Immigration Department on 26 April 2013, they jointly lodged their non-refoulement claim for protection, for which they completed a Supplementary Claim Form (“SCF”) jointly together on 24 February 2016 and attended joint screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
9. By a Notice of Decision dated 9 September 2016 the Director of Immigration (“the Director”) rejected the applicants’ claim on all then applicable grounds except for torture claim but included 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”).
10. In his decision the Director took into account all the relevant circumstances of the applicants’ claim and assessed the level of risk of harm upon their return to India as low due to the absence or low intensity and frequency of past ill-treatment from the money- lender, that their dispute with the money-lender was a private personal monetary matter without any official involvement that state protection would be available to the applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for A1 and A2 as able-bodied adults with work experience to move with A3 to other area in India away from their home district in large cities such as Delhi where it would be difficult if not impossible for the money-lender to locate them.
11. By a Notice of Further Decision dated 1 August 2017 the Director again rejected the applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their 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”).
12. By then the applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 20 September 2016, and for which they attended an oral hearing on 24 January 2018 before the Board during which both A1 and A2 gave evidence and answered questions put to them by the adjudicator for the Board. On 30 April 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.
13. In its decision the Board found the evidence of both A1 and A2 extremely vague and superficial with no details of their account of past events in India in particular as to A1’s business and the alleged loan from the money-lender and in the absence of any supporting documentary evidence that neither was considered as credible witness, that A1’s credibility was further undermined by the fact that he failed to make his claim after almost five years in Hong Kong until his arrest by the police and without obtaining any supporting documents during all these years that the Board concluded that the applicants’ claim failed on all applicable grounds.
14. On 4 May 2018 the applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in their supporting affirmation of the same date they put forward the following grounds as summarized for their intended challenge:
(1) lack of legal representation in their appeal before the Board;
(2) lack of language assistance in their appeal to the Board including no translation of the documents in the hearing bundle for their appeal;
(3) failure on the part of the Director to provide any screening interview for their BOR 2 risk and to consider the relevant COI as to the most recent situation in India;
(4) procedural unfairness in the Director’s failure to inform the applicants of his Further Decision on their BOR 2 risk; and
(5) failure on the part of the Director to rely on the relevant COI in his consideration of state protection in India and to properly explain his decision on the issue.
15. For the applicants’ complaint under Ground (1) of not being provided with legal representation in their 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 applicants already had the benefit of legal representation in presenting their case to the Director, and were able to testify and make representation in their appeal hearing before the Board and to answer questions put to them by the adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.
17. As for their complaint under Ground (2) of not being provided with any language assistance in their preparation for the appeal or with translation of the documents in their hearing bundle, it is clear that their SCF was completed on their instructions to their legal representation from DLS while most of the other documents such as the Director’s decisions had in fact already been made available to them earlier when they still had legal representation from DLS, and that they were also assisted by an interpreter at their appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of their claim had indeed been wrongly interpreted or not properly understood by the Board, which was in fact a simple and straightforward one based on a dispute over non-repayment of a relatively small loan, I find this complaint of the applicants simply without basis or merits.
18. Regarding the applicants’ complaint under Ground (3) that the Director determined their claim under BOR 2 risk without any further screening interview or referring to the relevant COI as to the latest situation in India, as has been repeatedly held by the Court of Appeal, there is no absolute right to an oral hearing as the question must depend on the standard 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, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: see ST v Betty Kwan [2014] 4 HKLRD 277.
19. On the facts of the applicants’ claim, and in the light of the scope and threshold of a claim under BOR 2 risk and the absence of any additional facts relevant thereto submitted by them despite being invited by the Director to do so, there was simply no room for engaging the BOR 2 ground, nor would any useful purpose be served by a further screening interview. The Director’s decision not to hold any further screening interview or oral hearing did not therefore in my view amount to any procedural unfairness or breach of the high standards of fairness, in particular when the applicants have not identified what additional facts or grounds that they would have put before the Director at a screening interview or oral hearing that could advance their case under the BOR 2 risk ground, nor did they raise any such issue before the Board. Nor for that matter do I see any necessity or relevancy for the Director to refer to COI as to the current situation in India given the private nature of their dispute with the money-lender without any evidence of official involvement.
20. As for their complaint under Ground (4) that they were not informed of the Director’s Further Decision on their claim under BOR 2 risk, this is actually factually incorrect as it was sent to them on the same day of the decision on 1 August 2017 at their then stated address, and that they never raised any such issue later at their oral hearing in their appeal before the Board. In any event as already explained in [19] above, I do not see how they would be so prejudiced even if they indeed did not earlier receive the Director’s Further Decision regarding their BOR 2 assessment.
21. As for their complaint under Ground (5) over the Director’s failure to refer to the relevant COI in his assessment of state protection in India or to properly explain his decision, this is again factually incorrect as it is clear in paragraphs 23.1 – 23.5 of his decision that the Director did carefully and thoroughly consider the relevant COI as to state and police protection in India being available to the applicants upon their return in the event that the money-lender would still have any adverse interest in them after all these years. As such there is simply no basis or merits in this complaint of the applicants.
22. As a matter of fact, the applicants’ claim was rejected by the Board essentially on its adverse finding on their credibility for the detailed analysis and reasoning set out in paragraphs 30 – 41 of its decision with the benefit of hearing their oral testimony and answers to questions raised of their claim at the oral hearing of their appeal, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the applicants, I am unable to see any reasonably arguable basis to challenge the finding of the Board.
23. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.
24. 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 applicants’ claim.
25. For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.
Dated the 12th day of July 2019.
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(NG Ka-wing)
for Registrar, High Court |
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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Notes for the Applicants:
If leave has been granted, the Applicants or their solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicants propose to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicants on 12 July 2019
1st Applicant:
Abdul Mannan
2nd Applicant:
Roushan Ara
3rd Applicant:
Tashabbur Rahaman
Applicants’ ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 July 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. nos.:
USM 4936/16/9/315/IN1043,
USM 4937/16/9/316/IN1044,
USM 4938/16/9/317/IN1045
Director of Immigration
2nd Putative Respondent’s ref. nos.:
RBCZ 9002740/17,
RBCZ 9002757/17,
RBCZ 9002758/17
(formerly RBCZ 2001252/14,
RBCZ 2001253/14,
RBCZ 2001254/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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