ALAM KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL361/2018

[2018] HKCFI 2138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 361 2018

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 40 (DOB: 13 May 1978). 

2.  The Applicant claimed he would be harmed or killed by his creditor Gudiya because he was not able to repay the latter.

3.  The Applicant was a factory worker between 1996 and 2002. From 2002 to 2010, he ran a footwear factory. From 2010, he was also involved in mobile phones trading.

4.  In 2008, the Applicant suffered a loss in his business. He borrowed money from a female moneylender called Gudiya. He was able to make repayment at first but defaulted in 2010. Gudiya threatened the Applicant. She made reference to her powerful uncle Zafar, who was a government minister of the Congress party.  It was said Zafar had influence on the police.

5.  In February 2010, Gudiya and some men forced into the Applicant’s home. They assaulted the Applicant and warned him that he must make payment within 10 days or something would happen to him. The Applicant believed Zafar was behind the scene.

6.  The Applicant was injured but he did not report the matter to the police. He considered it would be useless to make any report because of the influence of Zafar.

7.  The Applicant fled to Kolkata. Gudiya tried to find out from the Applicant's wife where he was. Later, the Applicant managed to arrange for his wife and children to flee to Kolkata to join him.

8.  With the help of his friends, the Applicant started a business in Kolkata. In 2011, he came to Hong Kong six times for business. He said he was assisting someone to trade in mobile phones.

9.  In June 2012, the Applicant was in Hong Kong again. He learnt from his wife that some policemen had gone to their home to look for him. They asked about the money he had borrowed from Gudiya. His wife asked him not to go back to India. The Applicant was worried about his safety. After his visa expired on 3 July 2012, he overstayed in Hong Kong.

10.  On 5 July 2012, the Applicant was arrested by the police. He subsequently raised a torture claim[1], which was rejected by the Director of Immigration (“the Director”) on 22 February 2013. There was no evidence the Applicant had appealed against that decision. The Applicant subsequently raised a non-refoulement claim on 5 March 2013.

11.  The Applicant was in contact with his wife up to at least April 2016. He was told the India police were still making visits to their home to enquire of his whereabouts.

12.  The Applicant thought he could not get state protection in India and internal relocation was not a viable option for him.

13.  In the ensuing two‑tier screening process (“the Unified Screening Mechanism”), the Director refused the Applicant’s non-refoulement claim with respect to the three remaining applicable grounds: risk of persecution,[2] risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and risk of violation of the right to life (life risk or BOR2 risk)[4].

14.  The Applicant appealed to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) on 10 January 2017. The Adjudicator re-heard the Applicant's claim on 22 December 2017. On 2 March 2018, the Adjudicator refused the Applicant's claim with respect to all the four applicable grounds: persecution risk, CIDTP risk (BOR3 risk), life risk (BOR2 risk) and torture risk.

15.  On 7 March 2018, the Applicant applied for leave for judicial review.

Timeline

16.  Things happened in this order: –

June 2012	The Applicant last entered Hong Kong as visitor. He was allowed to stay until 3 July 2012. However, he overstayed.
2012-7-5	The Applicant was arrested by the police.
2012-9-5	The Applicant raised a torture claim.
2013-2-22	The Director refused the Applicant's torture claim. [“the Director's 2013 decision”]
2013-3-5	The Applicant raised a non-refoulement claim.
2017-1-3	The Director refused the Applicant’s claim with respect to the remaining three applicable grounds: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).  [“the Director's 2017 decision”]
2017-1-10	The Applicant appealed to the Board.
2017-12-22	The Applicant appeared before the Board for appeal.
2018-3-2	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: persecution risk, CIDTP risk (BOR3 risk), life risk (BOR2 risk) and torture risk.  [“the Board's decision”]
2018-3-7	The Applicant applied for leave for judicial review.

Respondent/Interested party

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 case on a rehearing basis.

18.  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]

19.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Thus, the Board is the putative respondent; the Director is the putative interested party.

The Director's decisions

20.  The Director refused the Applicant's torture claim on 22 February 2013. The was no evidence that the Applicant had appealed against that decision. He subsequently raised a non-refoulement claim on 5 March 2013.

21.  In the Director’s further decision dated 3 January 2017, the Director did not accept the Applicant faced any persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s claim with respect to the remaining three applicable grounds: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).

The Board's decision

22.  The Adjudicator interviewed the Applicant on 22 December 2017. He found the Applicant was evasive and his evidence odd. [6]  He also found the Applicant exaggerating.[7]

23.  The Applicant had been to Hong Kong six times in 2011. He had no problem with the India authorities when leaving and returning to the country then. The Adjudicator did not believe the India police had been looking for the Applicant. The Adjudicator also noted that the Applicant only applied for non-refoulement protection after he had been arrested by the police in Hong Kong. He did not believe the Applicant was unaware of the application mechanism earlier. All in all, the Adjudicator did not accept the Applicant's claim was genuine.[8]

24.  The Adjudicator found the Applicant faced no torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk).[9] In any event, he considered internal relocation was possible in the Applicant's case.[10]

25.  On 2 March 2018, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.

Grounds of judicial review

26.  In Form 86 and his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

27.  The Applicant also complained the appeal bundle was only served on him only seven days before the Board hearing. He could not prepare the appeal in time as he was unrepresented and had difficulty to find someone to translate the English documents for his understanding. He was thus confused of what happened. He complained the Adjudicator had not made appropriate arrangement.

28.  The Applicant also complained the Adjudicator relied on outdated case or information not officially recognised or simply hearsay.

Court hearing

29.  The Applicant requested a hearing.  The hearing took place on 25 June 2018. A Hindi interpreter provided assistance in court.

30.  The Applicant said he was not good in English. Someone helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. He had nothing to add.

31.  The Applicant also 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

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

33.  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’.[11] 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.” [12]

34.  The Applicant complained he received the appeal bundle only seven days before the appeal hearing scheduled for 22 December 2017. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[13] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[14], 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.

35.  The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the appeal hearing. The bundle was served on the Applicant in time.

36.  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 difficult and there was no evidence to suggest the bundle was voluminous or difficult.

37.  A few days were certainly 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 the appeal. There was no evidence to show he had complained to the Adjudicator or asked for adjournment during the appeal hearing.

38.  The Applicant said in his affirmation that he answered all the questions honestly.[15] That would mean he knew well what was being asked and answered at will. He was not confused.

39.  In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

40.  The Applicant mentioned he was not given sufficient legal assistance. He had been represented by the Duty Lawyer Service up to the Director’s further decision dated 3 January 2017. There was no evidence to show he had re-applied for legal assistance from the Duty Lawyer Service afterwards.

41.  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.[16] The Applicant failed to show this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

42.  The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that and the Applicant also failed to point out the specifics.

43.  There are other vague complaints by the Applicant. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied 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. He 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. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

44.  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, para 45.

[6] The Board’s decision, para 88.

[7] Ibid., para 103.

[8] Ibid., para 108, 110-111.

[9] Ibid., paras 112-119.

[10] Ibid., para 120.

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

[12] CACV 219/2018 [2018] HKCA 570, para 14(1).

[13] 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.

[14] 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.

[15] The Applicant's affirmation, Point 8 on page 4.

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