MOHAMMED SAYEED v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1011/2017

[2018] HKCFI 1251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1011 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 (counsel for) the Applicant being absent / in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 48-year-old national of India who arrived in Hong Kong on 17 April 2009 with permission to remain as a visitor up to 1 May 2009 when he did not depart but instead overstayed until he was arrested by the police on 28 September 2011.  After he was referred to the Immigration Department for investigation, on 1 October 2011 he lodged a torture claim with the Department on the basis that if he returned to India he would be harmed or killed by his creditor.  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Khidder Pore, Kolkata, India where his mother and his wife and children still live. After leaving school he first worked in his cousin’s electronic store until 1999 when he formed a partnership with JA to open a shop selling mobile phones and accessories into which JA injected 500,000 Indian Rupees for goods and 50,000 Indian Rupees in cash with agreement to share the business profit equally between them.  JA is a wealthy and influential man with connection to the political party Bharatiya Janata Party.

3.  In 2000 the applicant got married and hired his brother-in-law to run the shop while he was busy raising his new family.  In 2003 however he discovered that his brother-in-law had made false book keeping records of the business, and when he informed JA of the problem, JA withdrew from the partnership and asked for his share of the business profit and his initial capital investment totaling 800,000 Indian Rupees.  As a result the applicant terminated the partnership and closed down the shop, but he did not have the means to repay JA.

4.  One day in mid-2005 the applicant was told to go to the police station as JA had complained to the police that the applicant had failed to repay the 800,000 Indian Rupees which he owed him, but when the applicant said he did not have the means to repay the money to JA, he was warned by the police that they would not be able to help him if something bad happened to him.

5.  In 2006 the applicant borrowed some money from his mother-in-law to start a garment and electronic shop in Khidder Pore Green Plaza.  In late 2008 JA came to his shop and demanded him to repay him the money now that he was running a new business, and agreed to give him more time to come up with the money, but by early 2009 when the applicant still failed to make repayment, he was assaulted by JA and several of his men by punching and kicking to his body before he was eventually able to flee from the scene.

6.  After receiving treatments for his injuries at a clinic, the applicant took shelter at his in-law’s home, and when he heard that JA was still looking for him, the applicant decided to leave India for his own safety and departed on 17 April 2009 for Hong Kong where he overstayed and subsequently lodged his torture claim, for which he submitted his Torture Claim Form (“TCF”) on 21 October 2013 and a Supplementary Claim Form (“SCF”) on 1 September 2014 with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 3 March 2015 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”).

8.  In his decision the Director found on the applicant’s case that the low intensity and frequency of past ill-treatment by JA which occurred many years ago is indicative of a small future risk of harm upon his return to India, that it was a private and personal dispute between the two of them and in the absence of any involvement of the state or police in the threats from JA 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 that it would not be unduly harsh for the applicant as an able-bodied man with working experience to move to areas other than his home district such as Delhi or Mumbai where he can live and work free of any threats from JA.

9.  By a Notice of Further decision dated 7 June 2017 the Director again rejected the applicant’s claim after receiving and considering a further document submitted by him 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”).

10.  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 13 March 2015, and for which he attended an oral hearing on 13 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found inconsistencies and implausibility in the applicant’s account of events and ultimately unreliable, but that even if true he has failed to show there is real intention for JA to harm or kill him, or that there is a real chance that the alleged risk would materialize after all these years, that there is no evidence to suggest any involvement of the state or police in the threats of JA that state protection would be available to him, and that he can relocate safely to other parts of India such as Delhi or Mumbai. 

12.  On 5 December 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 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) failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 Risk and for ignoring COI which show malpractice in the judicial system in India;

(4) wrongful exercise of case management power on the part of the Board for ignoring the additional facts submitted by him regarding BOR 2 risk and for wrongful reliance on COI in assessing malpractice of police and law enforcement in India; and

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

13.  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.

14.  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.

15.  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.

16.  Regarding his ground (3) it is plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 3 – 5 and 7 of his Notice of Further Decision in which the additional facts and document provided by the applicant were properly considered by the Director with reasons given for the rejection of his claim under BOR 2 risk.  There is simply no merit in this ground of the applicant.

17.  As for ground (4) over the Board’s reliance of COI in its assessment of effectiveness of police and law enforcement in India, again the applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 20 – 22 of the decision of the Director as well as those considered by the Board, I do not find any basis in 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.  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.

20.  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