BANO MUMTAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2762/2018

[2022] HKCFI 468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2762 of 2018

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 in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 19 November 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in her Notice of Decision dated 14 February 2018 (the “Notice”).  That appeal was determined by way of paper review without a hearing.

2.  The Director is also named as a proposed respondent, but the Applicant did not specify the decision in respect of which relief is sought.  It is assumed that the decision in respect of which she sought judicial review is the decision in the Notice which was the subject matter of her appeal to the Board and which appeal the Board dismissed in its Decision dated 19 November 2018.

3.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated her complaints against the Director as if they were directed at the Board also.  

4.  In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  Her claims were dismissed by the Director in her decision in the Notice.  Her appeal against the decisions in the Notice was dismissed by the Board’s Decision dated 19 November 2018.  On 5 December 2018, she sought leave to apply for judicial review against the Decision. 

5.  Originally, the application was made on behalf of herself and her two sons who were also the claimants named in the Notice and appellants named in the Decision, which is the subject matter of this application.  Subsequently, the Applicant deleted their names from the application, presumably because they have now turned into adults and will pursue their own course.  The present application only relates to the Applicant.

6.  The Applicant requested an oral hearing.  The notice of hearing was posted to the Applicant’s last known address in Kam Sheung Road on 12 December 2021.  It has not been returned through the post. The Applicant had previously responded to this Court’s letter sent to her at that address in May 2021.  There is nothing to suggest that she had not received the notice of hearing.  The notice contained a warning that if she does not attend the hearing, she will be deemed to have waived her right to make oral submissions at the hearing and the Court will deal with her application according to the paper already placed before the Court.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate to proceed with the determination of her application in her absence. 

The Applicant’s case

7.  The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with the assistance of the Duty Lawyer Service, the record of her screening interview before an immigration officer during which she was legally represented and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board.  In gist, her case is that she would be at risk of being harmed by three moneylenders in her country because she and her husband are unable to repay the loan owed to the moneylenders.

8.  The Applicant is an Indian national born in 1980. She is now aged 42, married with two children.  In September 2004, her husband borrowed 800,000 Indian Rupees from three moneylenders for his business trip.   Under a signed written agreement, her husband had to pay interest at the rate of 5% per month and to repay the whole loan within a year.  Her husband defaulted payment of interest after a few months.

9.  The moneylenders started chasing her husband in January 2006.  Her husband paid 50,000 Indian Rupees as interest.  Nothing happened until September 2006 when two people came to her home to demand payment.  Her husband was not at home.  The people told the Appellant that her husband had to return the money otherwise there would be trouble.  The two people came again in December 2006.  Her husband begged for more time.  The people agreed and left.

10.  One night in March 2007, one of the moneylender and two to three underlings slapped her husband’s face outside the Applicant’s home twice and warned him to repay within two to three months.  Her husband reported to the police, but the police refused to entertain the complaint treating it as a personal dispute.

11.  In the few months that followed, the moneylenders kept coming to the Applicant’s home calling for her husband.  One night in November 2007, two of the moneylenders with two to three underlings, armed with hockey sticks and iron rods, came.  They beat her husband and threatened to kill him and take away their children, if he dared not repay within a week.

12.  Her husband fled to his friend’s place in Bihar, India in December 2007 and then flew to Hong Kong in September 2009. 

13.  Between December 2007 and March 2011, the moneylenders frequently came to the Applicant’s home asking for her husband’s whereabouts.  Nonetheless, they never assaulted her or her children.

14.  One day in March 2011, the moneylenders came to the Applicant’s home and demanded her to repay the loan.  They threatened her that if she dared not repay, they would kill her sons and trouble her.  In the following three years, they came and harassed her.  They verbally threatened her that they will kidnap her children or kill her whole family.

15.  In around February 2014, two of the moneylenders came with two unknown women without any weapons.  The Applicant was beaten up by two women.  Her head and face were swollen.  She received treatment in a private clinic.  She was given pain killers and ointment and was discharged on the same day.  Her swelling recovered after about one week (the “first assault”).  She reported to the police.  The police considered it a personal dispute and refused to take action.

16.  In April 2014, the Applicant came to Hong Kong to discuss with her husband about the loan.  She returned to India after three days.  She came to Hong Kong again with her youngest son in around October and December 2014 to discuss with her husband about the loan.  They could not come up with any solution.  She was frequently threatened by the moneylenders upon her return to India.

17.  One day in April 2015, one of the moneylenders came.  He demanded repayment.  He held the Applicant’s younger son’s neck making him choke.   The Applicant tried to rescue her son and struggled with the moneylender.  She tried to snatch the knife from the moneylender and accidentally cut his hand.  The moneylender left vowing to return to kill her and her son (the “second assault”).  She made a report to the police station.  The police made some inquiries with the moneylender but took no action.  The Applicant said that was because of the moneylender’s influence.

18.  To avoid danger from the moneylenders, the Applicant and her two children fled to her brother’s home and stayed there until they came to Hong Kong in May 2015.

19.  The Applicant maintained contact with her brother.  Her brother told her that the moneylenders had been to his home a month after her departure and vowed to kill her, that some people had been stationing at her home waiting for her return; and that some had been visiting him asking for the Applicant’s whereabouts.

The finding of the Board

20.  Having considered the papers, including the Country of Origin Information (“COI”) and having regard to the authorities, in particular ST v Betty Kwan & Ors[6], the Board considered it appropriate to determine the appeal by way of paper review.  The Board accepted the evidence of the Applicant as stated in the NCF and the screening interview.  It proceeded to assess her claim under the four applicable grounds under the USM on the basis of her case.  It found that she had not made out her claim for non-refoulement protection.

21.  The Board accepted the Applicant’s case about her husband’s loan from the money-lenders, that she and her husband were unable to repay the loan, that her husband and she fled to Hong Kong in 2009 and 2015 respectively.  The centrepiece of her case is her fear of harm from the moneylenders, particularly the threats and the two assaults.  The threats were verbal threats only and were never executed.  In the first assault the Applicant was beaten, her head and face were swollen, but she recovered in about a week.  In the second assault, neither the Applicant nor her sons were injured.  On her evidence, the Board found that the injuries suffered by the Applicant and her sons did not fall within the scope of serious harm.

22.  The Board also accepted the Applicant’s evidence that the police took no action in respect of her husband’s and her complaints about the moneylenders’ actions.  It noted the Applicant’s allegation that the authorities in India cannot protect her and her children because they are corrupt and always favour the wealthy people and those who have political affiliation.  The Board also noted that on the Applicant’s evidence, the police made enquiries in respect of her complaint about the second assault.  The police actually asked the moneylender to attend the police station, which indicated that the police performed its duty.  Having extensively considered the COI, the Board was satisfied that state protection is available.  It found that it was the Applicant who chose not to seek help from other government authorities in India.  The Board had duly considered the well-foundedness of the Applicant’s fear.

23.  In respect of Persecution Risk, the Board found that the Applicant’s fear of ill-treatment did not fall within the definition of ‘persecution’ under section 37U(1) of the Immigration Ordinance in that it rose out of a private monetary dispute between individuals and not on account of race, religion, nationality, membership of a particular social group or political opinion which is a basic requirement which a claimant must prove to establish Persecution Risk.  There was also no evidence of any public or government official being involved which is another essential element which must be proved.  The Board was also satisfied on the basis of the COI that state protection is available.  Hence, it dismissed the Applicant’s claim based on Persecution Risk ground.

24.  On the evidence, the Applicant and her sons did not suffer any serious physical harm which attained a minimum level of severity from the moneylenders.  The Board was unable to accept there is substantial ground for the Applicant’s fear of a real risk of torture from the moneylenders if she is returned to India.  Besides, state protection is available to prevent the risk.  Hence, it dismissed the Applicant’s claim based on BOR 3 Risk.

25.  As BOR 2 Risk mainly relates to the death sentence and genocide, in the absence of other evidence justifying this ground, the Board found that the Applicant’s claim under this ground also failed.

26.  As for Torture Risk, the Board found that the Applicant and her sons never sustained any serious pain or suffering caused by the moneylenders.  There was no evidence that public or government officials were involved, that the Applicant and her sons were threatened by any public officials or person acting in an official capacity.  Furthermore, even if there was, the Applicant has not shown that she will face a foreseeable, real and personal risk if they return to India.

27.  On the evidence, the moneylenders have not located the Applicant between mid-April when she left home and 27 May 2015 when she fled India.  The Board was not satisfied that the Applicant has shown that the moneylenders would make use of their network to locate her if she were to move to some other parts of India.  Lastly, based on the Country of Origin Information (“COI”), the Board was satisfied that the Applicant, being a young female, could relocate to other parts of India without undue hardship and earn a living to support her children and avoid the moneylenders.

Grounds for judicial review

28.  In her affirmation filed in support of her application, the Applicant said she wanted to seek a review of the decision of the Immigration Department and the Decision of the Board.   She exhibited the decisions. Obviously, she disagreed with those decisions, but she did not put forward any specific grounds in support of her intended application for judicial review.

29.  In response to the Court’s invitation by letter dated 18 May 2021, the Applicant filed a submission dated 28 May 2021 advancing the following six grounds:

(1)      the Board was in breach of procedural fairness in the following respects:

(a)   the Board had unlawfully fettered his discretion by refusing her appeal on the grounds that it did not satisfy the requirement;

(b)   the Board acted in a procedurally unfair manner in dealing with the appeal;

(c)   the Decision was unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness;

(d)   the Board failed to meet to greater care and duty owed to a self-represented claimant.

(2)      lack of language assistance, legal assistance and sufficient time in preparing for the appeal;

(3)      she was confused due to lack of understanding on what will happen at the hearing and the hearing bundle was not translated into her first language;

(4)      she answered all the questions with honesty but her credibility was questioned; the hearing was unfair due to lack of care by the Board in making appropriate arrangements in relation to the hearing bundle;

(5)      the Board’s erroneous reliance on COI; and

(6)      that her first language is Hindi and she requested and oral hearing of her application for leave to apply for judicial review.

30.  Her grounds are all mixed and convoluted.  The above are direct quotes or summaries of her grounds so far as they could be summarised.  Ground (1) may be split into four different heads, namely unlawful exercise of discretion; procedural unfairness, irrationality and breach of the greater duty of care owed to the unrepresented applicant and irrationality. But this ground lacks particulars and she did not attend the hearing to provide them.  Grounds (2), (3) and (4) overlap with each another and may be categorised under one ground of lack of language assistance.  Ground (6) is not a ground and her request for an oral hearing was entertained but she did not attend the hearing.  Her grounds of application may be put under the following seven headings:

(1)      Unlawful exercise of discretion;

(2)      procedural unfairness;

(3)      breach of the greater duty of care owed to the unrepresented applicant;

(4)      unreasonableness and irrationality;

(5)      lack of legal and language assistance; and

(6)      erroneous reliance on COI.

The applicable legal principles          

31.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7].

Ground (1) – Unlawful exercise of discretion

32.  Under this ground, the Applicant accused the Board of having unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement for non-refoulement protection.  This could not be a valid ground for application for leave.  If the Applicant did not satisfy the requirements for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss her appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision.  As summarised above, the Board actually assessed the Applicant’s claims under the four applicable grounds on the basis of her case.  She could not have any complaint about the Board accepting her evidence.  Her real complaint is the Board’s assessment that she is not entitled to non-refoulement protection.  That assessment was reached by applying the applicable law relating to non-refoulement protection under the USM to the facts of her case as she asserted.  That is a further or secondary finding of fact.   Finding of fact is a matter exclusively within the province of the Board.  The Court was unable to find any error of law committed by the Board in its assessment.  Having having rigorously scrutinised the Decision and the papers in the light of the grounds and her submissions, the Court was satisfied that the Decision could not be criticized by reason of this ground.

Ground (2) – Procedural unfairness

33.  The Applicant did not particularise the procedural unfairness complained of.  Having rigorously examined the Decision with anxious scrutiny, the Court was unable to detect any suggestion of procedural unfairness. 

34.  Though not so asserted in her affirmation or submission, to the mind of an unrepresented appellant, a determination in her absence might appear to be procedural unfairness.  Whether to make the determination without a hearing was considered in some depth by the Board in paragraphs 16 to 20 of its Decision.  The Board directed its mind to the principles as stated by Cheung CJHC in ST v Betty Kwan & Ors[8]. Having applied the six-point test in that case, the Board considered a paper review is appropriate in the circumstances of the present case.  The Board noted in particular that the Applicant was legally represented at the screening interview before an immigration officer.  She had all the benefits which legal representation could have afforded her.  The Board was able to take into account the submissions made by her legal representative.  In addition, this Court noted that the Board actually proceeded to assess the Applicant’s claims on the basis of her case as presented by her in the NCF and in the screening interview.  Pursuant to section 12 of Schedule 1A to the Immigration Ordinance and paragraph 15 of Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, it is open to the Board to determine an appeal without hearing.  The Court agreed with the approach taken by the Board and its decision not to hold an oral hearing.  There was no procedural unfairness.

35.  In paragraphs 3 and 4 of her submission, the Applicant complained that due to lack of understanding of what will happen at the hearing she was confused.  She said she had answered all the questions with honesty and it aggravated her that her credibility was found questionable.  She believed it was an unfair hearing due to lack of care by the Board in making appropriate arrangements in relation to the hearing bundle.

36.  There is no factual basis in this submission because there was no oral hearing.  She could not have been confused.  She was not asked any questions at any oral hearing.  The Board proceeded with its assessment of the risk and harm on the basis of her case as she presented it.  There was no issue of the Board doubting her credibility and making adverse finding on her credibility because of her absence at the hearing. There could not be any unfairness in accepting her case without question.  The delivery of the hearing bundle to the Applicant and whether there was any breach of the duty of care in the arrangements relating to the delivery of the hearing bundle are non-issues.  There is no procedural unfairness.

Ground (3) – breach of greater duty of care owed to the unrepresented applicant;

37.  The Applicant did not particularise the duty and the breach.  As mentioned above, the alleged breach of duty of care in making arrangements in relation to the hearing bundle is a non-issue.  In the light of the conclusion reached in respect of the other grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.

Ground (4) - unreasonableness and irrationality

38.  The Applicant did not give any particulars as to what was unreasonable or irrational in the Decision. Her complaint could only be treated as an overall or general complaint about irrationality and unreasonableness in the Board’s finding.  This ground is therefore a complaint against the finding of fact by the Board.  As mentioned above, the function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. In an application for judicial review, the Court will only scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality.  Subject to the above, the conclusion is one which is open to the Board to make on the evidence (See paragraph 48 below).

Ground (5) – Lack of legal and language assistance

39.  The Applicant’s first language is Hindi.  She complained that the majority of the document in the hearing bundle was written in English.  She did not have funds to employ the services of an interpreter and was not given language assistance in understanding the bundle and in preparing her appeal.  She also complained that she was not given sufficient time to prepare for her appeal. 

40.  In Re Zafar Muazam[9], Re Zunariyah[10], Re Zahid Abbas[11], Re Tariq Farhan[12], and Re Lopchan Subash[13], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[14] nor the judgment of FB v. Director of Immigration[15] prescribes that a claimant of BOR 2 or BOR 3 or Persecution Risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal assistance.

41.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing her NCF and at the screening interview.  All the benefits that legal representation could have afforded her were contained in her written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite she was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded her were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

42.  Likewise, in Karamjit Singh[16], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, she has to live with or cope with her language disability.  She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit.

43.  Though the appeal bundle is in English, it is basically made up of her NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI.  She knew what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service.  She knew what is contained in the record of screening interview which she attended with the assistance of interpreter and legal representation.  The record had been read back to her in her own language and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary.  Recognizing the limitation in her foreign language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind herself of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips.   The Notice and COI are written in English and, unfortunately, no translation was provided.  She cannot expect these documents to be fully translated for her.   She had to seek assistance from among her friends and community, if necessary. 

Ground (6) - Erroneous reliance on COI

44.  The Applicant complained that by reason of its reliance on outdated COI which is not officially recognized or is hearsay, the Board made groundless speculations that it is safe for her to return to India.  The Board relied on the COI in its finding on availability of state protection and internal relocation. 

45.  The COI relied on by the Director to which the Board referred are all from official, authoritative and credible sources, including Country Report on Human Rights Practices for 2016: India published by the United States Department of State; The World Fact Book – India (last updated on 30 January 2018), published by United States Central Intelligence Agency; Country Information and Guidance Report – India: Background Information, including Actors of Protection, and Internal Relocation 2015, and Country of Origin Information Report – India 2012 published by the United Kingdom Home Office; and other news reports and articles.  The information is contemporaneous and not outdated.  Having regard to the nature of the information, it must contain an element of hearsay.  The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information.  The information is credible.  Furthermore, the Board had carefully considered the information.  As for the weight to be given to the COI, it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc.  It is a finding of fact solely within the province of the Board.

46.  Other than making a bald assertion of unreliability, outdated information and hearsay, the Applicant provided no particulars of any credible up-to-date information, not even any hint as to any possible source of such information, not to mention her failure to provide any up-to-date publication contradicting these COI.  The Court considered the complaint based on the COI is absolutely groundless.

Conclusion

47.  Having rigorously examined the Director’s Notice, the Board’s Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues; and observed a very high standard of fairness.  On the basis of the Applicant’s evidence, the Board found the Applicant’s fear of harm was not well-founded.   Applying the law to the facts, the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of state protection and internal relocation.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could identify no error of law or procedural unfairness. The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

48.  For the above reasons, leave to apply for judicial review was refused.

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][1] [2018] HKCA 549

[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] CACV 115/2013 at paragraphs 20 to 54

[7] [2018] HKCA 524 at para 14(1)

[8] CACV 115/2013

[9]  cacv 2/2018, (unreported) 23 March 2018

[10] [2018] HKCA 14

[11] [2018] HKCA 15

[12] [2018] HKCA 17

[13] [2018] HKCA 37

[14] (2004) 7 HKCFAR 187

[15] HCAL 51 of 2007

[16] CACV 78/2018