MOHAMMED HASIB UDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1157/2017

[2018] HKCFI 1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1157 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 be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of India. He is now aged 34 (DOB: 27 July 1984). 

2.  The Applicant claimed he would be harmed or killed by the family members of his girlfriend Mohini and also by his creditor Hakim.

3.  The Applicant said he was a Sunni Muslim. He met Mohini in early 2012. She was from a Hindu family. Her father was the President of the Communist Party of India (Marxist) [“CPIM”] in Khidderpore.

4.  In mid-2012, Mohini’s father and brother approached the Applicant because they had found out the girl’s love affairs with him. They warned the Applicant to leave Mohini or they would kill him. The Applicant subsequently got a number of threatening phone calls from Mohini’s father.

5.  In August/September 2012, the Applicant was attacked in a park by ten odd people. He was injured. The police were alerted but they did not take any action. The Applicant believed it was because Mohini’s father was a president of CPIM and had connection with the police.

6.  Mohini’s father called the Applicant. He admitted the attack was instigated by him. He threatened there would be more attacks against the Applicant.

7.  The Applicant was further attacked in early 2013 and in mid-2013. He did not make reports to the police because he thought it was useless.

8.  Mohini’s father and brother continued to threaten to kill the Applicant. The Applicant feared for his life. He moved to another place called Malda but still got menacing phone calls from Mohini’s father and brother.

9.  The Applicant moved further to Delhi but the threats from Mohini’s father and brother continued. The Applicant feared his enemies would find him eventually. He decided to leave India.

10.  The Applicant came to Hong Kong on 1 December 2013 and stayed till 10 December 2013. He said his mother was sick at that time so he returned to India instead of seeking asylum in Hong Kong on that occasion.

11.  On 1 March 2014, the Applicant came to Hong Kong again. He did not seek protection immediately. His visitor’s visa expired on 15 March 2014 and he surrendered to the Immigration Department only on 18 March 2014. Then he raised a non-refoulement claim.

12.  In his written representation dated 23 May 2014, the Applicant added an allegation that in 2011 he had borrowed US$50,000 from a moneylender called Hakim, who was a leader of the political party Trinamool Congress Party (“TMC”) and a member of the Legislative Assembly. The Applicant lost money in his business so he could not repay Hakim. Hakim threatened to kill him. The Applicant said Hakim was a powerful man and enlisted the help of some police officers to demand repayment from him in 2011/2012. Those policemen arrested him and tortured him in the police station. He was only released after getting court bail. [The Applicant explained to the Director and the Adjudicator that he had not mentioned Hakim in the non-refoulement claim form (“NCF”) in the first instance because he thought he could say it later.]

13.  The Applicant said his mother in India told him his enemies were still looking for him. He claimed those men were powerful so internal relocation was not viable. The Applicant also said he did not know how to complain to the higher authorities in India.

14.  In the ensuing two‑tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2]  (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

15.  On 29 December 2017, the Applicant applied for leave for judicial review.

Chronology of events

16.  Things happened in this order: –

2013-12-1	The Applicant entered Hong Kong as visitor. He was permitted to stay until 15 December 2013. He left Hong Kong on 10 December 2013.
2014-3-1	The Applicant came to Hong Kong again as visitor. He was allowed to stay until 15 March 2014.
2014-3-16	The Applicant began overstaying in Hong Kong.
2014-3-18	The Applicant surrendered to the Immigration Department and raised a non-refoulement claim.
2017-1-26	The Director interviewed the Applicant.
2017-3-20	The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk). [“the Director's decision”]
2017-11-3	The Applicant appeared before the Board for appeal.
2017-12-14	The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”]
2017-12-29	The Applicant applied for leave for judicial review.

Respondents

17.  The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

18.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents.  The Board is the first putative respondent; the Director is the second putative respondent.

19.  In Re Moshsin Ali, the Court of Appeal ruled “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.” [5] In light of such decision, the Applicant cannot seek judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.

Director of Immigration (the Director)

20.  In the Director’s decision dated 20 March 2017, the immigration officer doubted the credibility of the Applicant. The Applicant did not claim protection when he stayed in Hong Kong during 1-10 December 2013. The officer did not accept the Applicant's explanation that his mother was ill then. The Applicant also did not seek protection when he entered Hong Kong again on 1 March 2014 but delayed for 10 odd days until he surrendered to the Immigration Department on 18 March 2014. The officer did not accept the Applicant would have so waited if he really faced imminent threats.

21.  The Applicant mentioned Hakim only in his additional representation made in late May 2014. The officer did not accept the Applicant’s explanation that he thought he could mention it later so he did not say it in the NCF in the first instance.

22.  Even on the Applicant's own description of events, the officer considered the Applicant's alleged risk was not likely to materialize.

23.  The officer was aware there were reports of police corruption in India. However, there was also objective country-of-origin information (“COI”) showing ongoing reforms in the country and there were alternative avenues to seek justice. The officer found reasonable state protection was available to the Applicant. Internal relocation was also viable.

24.  The officer did not accept the Applicant faced any torture risk, persecution risk, BOR3 risk or BOR2 risk. He refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

TCAB/NCPO (the Board)

25.  The Adjudicator found there were contradictions and implausible features in the Applicant's allegations. He found the Applicant unreliable and incredible.[6]

26.  The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.

Grounds for judicial review

27.  In his affirmation, the Applicant had these complaints: –

(a) lack of legal representation;

(b) lack of language assistance;

(c) wrongful exercise of case management power;

(d) lack of fair hearing.

Court hearing

28.  The Applicant requested a hearing.  The hearing took place on 19 June 2018. The Applicant was in person. A Hindi interpreter provided assistance in court.

29.  The Applicant said he did not know English. A friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He did not elaborate any of those grounds or give specifics. He merely asked the court to look at his case again.

30.  The Applicant confirmed he had submitted all the information and materials he had to the Director and the Adjudicator for their consideration of his non-refoulement claim.

Discussion

31.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

32.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[7]

Lack of legal representation

33.  The Applicant complained he was not provided with legal assistance after the Director's decision dated 20 March 2017.

34.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] There is no evidence the Applicant had re-applied for legal assistance from the Duty lawyer Service after the Director's decision. He also cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stage of the screening process.

Lack of language assistance

35.  The Applicant complained he was not provided with sufficient interpretation/translation assistance.

36.  In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to provide him with interpretation/translation assistance. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance. His suspicion that the interpreter might not have translated the basis of his claim properly in the non-refoulement claim form (“NCF”) was mere speculation. That cannot be a proper ground of complaint.

Wrongful exercise of case management power

37.  The Applicant complained the Director failed to explain how he balanced the COI he had considered for and against his claim and why the Director concluded state protection was available in his case.

38.  As pointed out in paragraph 19 above, the Director's decision, within the existing administrative structure, is not susceptible to judicial review once an appeal to the Board was pursued by the Applicant. In any event, the Director had stated clearly what and how he had considered the issue of reasonable state protection.[9]

Lack of fair hearing

39.  The Applicant complained the Director was excused from the appeal hearing on 3 November 2017. He failed to show how the Director’s absence would prejudice his appeal. That cannot be a proper ground of complaint. 

40.  In my judgement, the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints. The Adjudicator had engaged in joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed he was acquainted with the facts and applied the law correctly. He had considered the Applicant's claim carefully. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

41.  The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the 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

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] CACV 54/2018, paras 31-45.

[6] The Adjudicator’s Report, paras 27-39.

[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[8] CACV 284/2017 Re: Paswan Shibu Lal, para 21.

[9] The Director's decision, para 19.