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HCAL1139/2017
[2018] HKCFI 1674
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1139 of 2017
BETWEEN
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Ansari Faiyaz |
Applicant |
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and |
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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 Josiah Lam:
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 38 (DOB: 30 April 1980).
2. The Applicant claimed he would be harmed or killed by a moneylender Anoop Kumar (“AK”) in India.
3. The Applicant claimed he was a tailor. He wanted to start his own business so he borrowed 750,000 Indian rupees from AK in June 2009. He repaid by monthly instalments.
4. In August 2009, a neighbouring shop caught fire. The Applicant's shop was also burned down. He became unable to repay AK. AK was angry. He pressed for repayment and threatened to kill the Applicant repeatedly. The Applicant was panicked. He left home to dodge AK.
5. In September 2009, the Applicant went to the police station to seek assistance. However, the police officer at the entrance refused to let him in unless the Applicant would offer a bribe. The Applicant had no money so he gave up reporting. He made no further efforts to report AK to the police.
6. In October 2009, the Applicant returned home. His parents told him AK had sent some men to look for him. The Applicant’s parents had gone to the police for assistance but the police asked them to resolve the problem by themselves.
7. Being in fear, the Applicant left home again. He lived in another city for some months. As he was unable to raise money to repay AK, he decided to leave India for China to look for job and for safety.
8. The Applicant left India on 17 June 2010 and arrived in China on the next day. He stayed there for several years until 2015. He did not approach the China authorities to seek asylum because he feared of being arrested and repatriated to India.
9. On 11 December 2015, the Applicant entered Hong Kong from China illegally by boat. He surrendered to the Immigration Department three days later and subsequently sought non-refoulement protection.
10. The Applicant said he had lost contact with his family and friends in India since August 2010. He did not know the current situation in India but he believed AK was still waiting for him.
11. The Applicant did not believe the India police would help him because they were corrupt. AK was a powerful man and had connections with politicians.
12. The Applicant also said he had no means to relocate himself to other parts of India. He feared he would be killed by his enemy because AK could find him anywhere in the country.
13. 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].
14. On 27 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
15. Things happened in this order: –
| 2010-6-17 |
The Applicant left India for China. |
| 2015-12-11 |
The Applicant sneaked into Hong Kong from China by boat. |
| 2015-12-14 |
The Applicant surrendered to the Immigration Department. |
| 2016-6-21 |
The Applicant lodged a non-refoulement claim. |
| 2016-11-11 |
The Director interviewed the Applicant. |
| 2016-11-30 |
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”] |
| 2017-9-28 |
The Applicant appeared before the Board for appeal. |
| 2017-12-19 |
The Board dismissed the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2017-12-27 |
The Applicant applied for leave for judicial review. |
Respondents
16. 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.
17. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as proposed respondents. Thus the Board is the first putative respondent; the Director is the second putative respondent.
18. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
19. In the present case, the Director's decision was more than three months old by the time the Applicant filed his current application on 27 December 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 19 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision albeit late on 27 December 2017; the application against the Board's decision was made in time.
Director of Immigration (the Director)
20. In the Director’s decision dated 30 November 2016, the officer did not make specific findings on the Applicant’s credibility. However, even on the strength of the Applicant’s allegations the officer found the level risk of harm against the Applicant was low. The Applicant had not been inflicted with severe pain or suffering. There were no substantial grounds to believe AK and his men would harm or kill the Applicant. The officer did not believe the alleged enemies would still target the Applicant after the lapse of more than six years.
21. The officer found the Applicant's complained situation was only a private dispute between him and AK. It had nothing to do with the India government or authorities. There was no evidence of instigation, consent or acquiescence by officials or persons acting in official capacity.
22. The officer was aware there were reports of police corruption in India. However, there was also objective country-of-origin information (“COI”) showing reforms in the country. There were channels to lodge complaints and venues for justice. The officer found reasonable state protection was available to the Applicant. Internal relocation was also viable.
23. The officer did not accept the Applicant faced any real risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
TCAB/NCPO (the Board)
24. While the Adjudicator accepted the Applicant had borrowed money from AK, he did not believe the Applicant was harassed by AK or the Applicant left India in fear of AK. The Adjudicator noted the Applicant had stayed in China for five years without seeking asylum before he came to Hong Kong to apply for protection.
25. The Adjudicator found the Applicant's complained situation arose from a private dispute. AK was not a ‘state actor’. The state was not involved.
26. The Adjudicator considered the Applicant had not made enough efforts to complain his situation to the authorities in India. He did not accept reasonable state protection was not available to the Applicant.
27. The Adjudicator did not think Ak would still target the Applicant after so many years. He found internal relocation was viable in the Applicant’s case.
28. The Adjudicator found there was no real torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk) that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
29. In Form 86 and his affirmation, the Applicant complained the Director only served the hearing bundle on him 7 days prior to the appeal hearing. He did not have sufficient time to find an interpreter to help him to prepare for the appeal. He was therefore confused as to what happened. The Applicant said the Adjudicator failed to make appropriate arrangement on the hearing bundle.
30. The Applicant complained the Director made his decision only on 30 November 2016. That was unreasonable delay. The Applicant said he was unable to retrieve proofs from India to support his appeal.
31. The Applicant also complained the Director and the Adjudicator failed to carry out sufficient research and enquiry of COI; failed to take into account relevant information; relied on information not officially recognised or simply hearsay; cherry-picked information; misdirected themselves; acted in a procedurally unfair manner; made procedural errors and rendered unreasonable decisions.
Court hearing
32. The Applicant requested a hearing. It was scheduled for 25 April 2018. The Applicant was present but claimed to be sick. The hearing was adjourned to 16 May 2018. The Applicant attended the hearing. A Hindi interpreter provided interpretation service in court.
33. The Applicant said he did not know English. A friend helped him to prepare Form 86 and the affirmation. The Applicant confirmed all the grounds of judicial review were in the documents. He said the decisions of the Director and the Adjudicator were not correct. The Applicant did not elaborate his complaints.
Discussion
34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
35. 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 complaint under ‘rigorous examination and anxious scrutiny’.[6]
36. The Applicant complained the Director made his decision only on 30 November 2016. He said there was unreasonable delay and due to such delay he was unable to retrieve proofs from India to support his claim.
37. The Applicant arrived in Hong Kong in December 2015. He signified his intention to raise a non-refoulement claim in June 2016. The completed non-refoulement claim form (“NCF”) was submitted in September 2016. The Director’s decision came out in November 2016. It was not late at all. I cannot see how the Applicant was hindered in getting proofs from India for his claim or appeal.
38. The Applicant complained he received the appeal bundle only 7 days before the Board hearing scheduled for 28 September 2017.
39. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[7] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[8], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
40. In the present case, the Director served the appeal bundle on the Applicant 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was thus served time in time.
41. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not complicated and there was no evidence to show the appeal bundle was difficult or voluminous.
42. In court, the Applicant said a friend help him to prepare Form 86 and the affirmation for the current application for leave for judicial review. I am sure the Applicant had access to language assistance at all material times if he so wanted. He had exaggerated his problem of understanding and handling English documents.
43. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. There was no evidence that the Applicant had applied for adjournment or that he was confused of what happened.
44. There were other vague complaints by the Applicant. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. The Director and the Adjudicator had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints can stand.
Conclusion
45. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 30th day of July 2018
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(Alan Ngan)
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
Notes for the Applicant:
If leave has been granted, the Applicant or his 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 Applicant proposes 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 Applicant on 30/7/2018
Ansari Faiyaz
Applicant’s 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 30/7/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 5492/16/12/139/IN1139
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2078/16 (formerly RBCZ 12324/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[8] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
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