MD HASNAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 953/2017

[2018] HKCFI 1694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 953 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 the Applicant being absent;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 29-year-old national of India who arrived in Hong Kong on 18 December 2013 with permission to remain as a visitor up to 1 January 2014 when he did not depart but instead overstayed until 14 January 2014 when he surrendered to the Immigration Department and subsequently lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Khidderpur, Ekbalpur, Kolkata, India.  After leaving school he first worked as a tailor and then a salesman until 2010 when he started to run his own garment business.

3.  In February 2012 he borrowed 400,000 Indian Rupees from his good friend RY, whose father was a wealthy and influential man in the neighborhood, with interest payable on a monthly basis, of which the applicant managed to do until 2013 when he suffered heavy losses in his business and had to plead with RY for more time for his loan repayment, and to which RY agreed to give him one more month to do so.

4.  However, one month later when the applicant was still unable to repay his loan, he was attacked by RY and his men with wooden sticks and cricket bets until they were stopped by the neighbors, and the applicant had to receive treatment to his head injury, but he did not report the attack to the police as he did not think that his injury was serious.

5.  Several weeks later RY and his men again came to the applicant’s house demanding for loan repayment, and when the applicant was still unable to do so, he was again attacked by RY and his men with knives and cricket bets that he suffered injuries to his head and left wrist, and before he left RY threatened to kill the applicant if next time he still failed to repay his loan.

6.  After that attack the applicant asked his uncle to report it to the police, but when his uncle arrived at the police station, the father of RY was already there making a complaint to the police of the applicant’s failure to repay his loan to RY.  Several days later the police came to the applicant’s home to suggest that the applicant settle his dispute with RY, but when the applicant insisted with his complaint against RY for attacking him, and when the police were unable to find any witnesses from the neighbors to the attack, they decided that no further action would be taken.

7.  Fearing of further attacks by RY, the applicant decided to leave home to take shelter at his aunt’s place in Bombay where he remained hiding for several months with no further incidents, but when he later heard that RY had found out that he was hiding in Bombay and that he would be coming for him, the applicant felt that it was no longer safe to remain in India and therefore departed on 17 December 2013 for Hong Kong and subsequently lodged his non-refoulement claim, and for which he completed a Non-refoulement Claim Form (“NCF”) on 7 August 2015 with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 20 November 2015 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 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”).

9.  In his decision the Director considered the dispute between the applicant and RY a private monetary matter that in the absence of any involvement of the state or police in RY’s threats and conducts 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 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 the applicant as an able-bodied young man to move safely to other areas away from his home district such as Delhi or Mumbai where it is beyond the capability or resources of RY to locate him.

10.  By a Notice of Further Decision dated 21 February 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him 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”).

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 December 2015, and for which he attended an oral hearing on 21 March 2017 before the Board during which he stated that he had nothing to add to those information already supplied to the Director but he did answer questions put to him by the adjudicator for the Board.  On 1 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found that the applicant has failed to show that he faces a real or genuine risk of harm from RY as claimed, and that any such risk is confined to his local area that it would not be unreasonable for him to relocate elsewhere in India, and concluded that his claim for non-refoulement protection fails on all applicable grounds.

13.  On 24 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, 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 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;

(3)     wrongful exercise of case management power by giving undue weight to COI showing recent efforts in India to put in place strategies and programs to bring about improvement in police corruptions when other COI also show that are still many malpractices in police and other government departments of which rich people can take advantage; and

(4)     lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing.   

14.  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.

15.  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.

16.  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 merit.

17.  As for ground (3) over the Board’s improper reliance of COI in its assessment of effectiveness of police and law enforcement in India, it is in my view inappropriate for the applicant to just extract paragraph 53(A)(f) from the decision out of context from the rest of paragraph 53(A) which was meant to be read together, and which I did with close examination and do not find any basis for this complaint of the applicant. 

18.  As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his 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 could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.

19.  The fact is that once it has been found and established by both the Director and the Board in their decisions that the risk of harm from RY is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of India, there is simply no justification to afford him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.     

20.  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.

21.  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