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HCAL648/2018
[2019] HKCFI 31
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 648 of 2018
BETWEEN
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Ismail Shiak Dawood |
Applicant |
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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 50 (DOB: 26 May 1968).
2. The Applicant claimed he would be harmed or killed by his creditor Kuppan because he failed to repay the latter.
3. The Applicant said he ran a food business. In 2012, he borrowed 800,000 rupees from Kuppan. Kuppan was a politician and a member of the political party All India Anna Dravida Munnetra Kazhagam Party (“ADMK”). He was also a member of the Legislative Assembly in Tamil Nadu.
4. The Applicant had failed to pay Kuppan since June 2012. Some 8 - 9 men came to demand payment. The Applicant was not at home. Those men took away some valuable jewellery belonging to the Applicant's wife.
5. The next day, Kuppan’s men went to the Applicant's food stall. They prevented the Applicant from doing business. They said they would only let him do business if he could make payment to Kuppan.
6. The Applicant did not seek assistance from the India police. He believed the police would not help him since Kuppan was an influential man.
7. In August 2012, the Applicant went to speak to Kuppan. Kuppan’s men beat him up. They threatened to kill him if he could not make payment soon.
8. Again, the Applicant did not ask help from the police. He fled to a friend’s place for refuge. His friend advised him to go to Hong Kong to wait for the situation to improve and also to do some garment business for him.
9. The Applicant left India on 2 October 2012. He arrived in Hong Kong on 4 October 2012. He did not seek asylum immediately. He went to Macau on 16 October and returned the next day. He was only allowed to stay in Hong Kong for two more days. His wife told him on the phone that Kuppan still threatened to kill him. The Applicant then decided to stay in Hong Kong. He overstayed here from 20 October 2012.
10. The Applicant was arrested by the police four months later on 27 February 2013. He subsequently sought non-refoulement protection.
11. The Applicant said Kuppan had connections in India so internal relocation was not viable. For the same reason, he thought the India police would not protect him.
12. In the ensuing two‑tier screening process here, 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
13. On 16 April 2018, the Applicant applied for leave for judicial review.
Timeline
14. Things happened in this order: –
| 2012-10-4 |
The Applicant entered Hong Kong as visitor. He went to Macau on 16 October 2012 and returned the next day. He was only allowed to stay till 19 October 2012. |
| 2012-10-20 |
The Applicant began overstaying in Hong Kong. |
| 2013-2-27 |
The Applicant was arrested by the police. |
| 2014-5-20 |
The Applicant raised a non-refoulement claim. [He indicated such intention to the Immigration Department on 3 March 2013.] |
| 2016-7-25 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2017-7-4 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-18 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-28 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2018-2-15 |
The Applicant appeared before the Board for appeal. |
| 2018-3-29 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-16 |
The Applicant applied for leave for judicial review. |
Respondents
15. 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 case on a rehearing basis.
16. 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.
17. In Re Moshsin Ali, the Court of Appeal states that “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] The Applicant cannot seek leave for judicial review against the Director’s decisions. Therefore, I shall deal with his application only in relation to the Board's decision.
The Director's decision
18. The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
19. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 15 February 2018.
20. The Adjudicator found there were inconsistent, exaggerating and implausible features in the Applicant's allegations. The centrepiece of the Applicant's claim was that he borrowed money from Kuppan to run his food business. The Applicant explained how the money was spent. The Adjudicator was not satisfied with his explanation. For example, the Applicant had not mentioned previously that he would spend 250,000 rupees on family expenses. The Adjudicator found it hard to believe Kuppan would prevent the Applicant from doing business when he wanted the Applicant to have money to pay him. The Adjudicator did not find the Applicant’s evidence credible. The Applicant failed to prove any risk that warranted non-refoulement protection.
21. The Adjudicator found that even if the Applicant's allegations were true, his complained situation still did not involve any torture or cruel, inhuman or degrading treatment or punishment or arbitrary deprivation of life or persecution for any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no torture risk, persecution risk, BOR2 risk or BOR3 risk.
22. The Adjudicator did not accept Kuppan would be able to seek the Applicant out in the whole of India. The Adjudicator studied relevant country-of-origin information ("COI") and considered that internal relocation was viable in the Applicant's case.
Grounds of judicial review
23. In his affirmation, the Applicant complained against the Director and the Adjudicator. As said in paragraph 17 above, I would deal with the current application in relation to the Board's decision only as the Director's decisions had gone on appeal to the Board as rehearing.
24. The Applicant complained the Adjudicator failed to consider the issues of state protection and extended state acquiescence; failed to conduct sufficient inquiry of relevant country-of-origin information ("COI"); failed to provide justification as to why certain COI was preferred to rule against him; cherry-picked information; failed to consider the real condition in India especially Tamil Nadu; failed to consider his psychological harm; rendered unreasonable decision.
Court hearing
25. The hearing took place on 20 July 2018. The Applicant was in person. A Tamil interpreter provided service in court.
26. The Applicant said a lawyer helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He could not elaborate on those grounds. The Applicant complained the Adjudicator did not say clearly what was wrong with his claim.
27. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. 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’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]
30. The Applicant complained the Adjudicator failed to conduct sufficient inquiry of COI; failed to provide justification as to why certain COI was preferred to rule against him; cherry-picked information and failed to consider the real condition in India especially Tamil Nadu. He further complained the Adjudicator did not say clearly what was wrong with his claim
31. The Adjudicator’s report was clear and comprehensive. The Adjudicator studied the Applicant's case in detail, including relevant COI. He understood the Applicant's claim well and the relevant situation in India.
32. The Adjudicator need not state his mental process of judging and weighing the COI. There was no evidence that the Adjudicator cherry-picked information for his decision.
33. The Adjudicator found the Applicant’s claim incredible, so there was no psychological harm to be considered. Since the Applicant failed to establish any risk that warranted non-refoulement protection, the Adjudicator also need not discuss reasonable state protection (including extended state acquiescence).
34. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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. The Adjudicator had 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 Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
35. The Applicant's complaints are not reasonably arguable. He has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated 9th day of January 2019
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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
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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 9/1/2019
Ismail Shiak Dawood
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 9/1/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4329/16/8/48/IN982
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 670/16 & RBCZ 9002633/17 (formerly RBCZ 3000487/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
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