RASU RAMAKRISHNAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL153/2018

[2018] HKCFI 2052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 153 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and the Applicant being absent from court

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 45 (DOB: 10 October 1972). 

2.  The Applicant claimed he would be harmed or killed by a creditor, who was an incumbent minister of the Tamil Nadu state where the Applicant used to live. The creditor belonged to the ruling party All India Anna Dravida Munnetra Kazhagam (“ADMK”), which came into power in 2009.

3.  When the Applicant could not repay his creditor, his father borrowed some jewellery from the Applicant's uncle for pawning to help the Applicant. The uncle was a businessman. The Applicant's father was unable to redeem the pawned items and committed suicide later. The Applicant said he feared his uncle would kill him.

4.  The Applicant said his business required money when the economy deteriorated. In September 2009, he borrowed six million Indian Rupees from a creditor, who was a minister of ADMK. The Applicant had to make monthly repayment to the creditor.

5.  In December 2009, the Applicant was unable to pay. His father borrowed some jewellery from the Applicant’s uncle and pawned the jewellery to raise money to help the Applicant. When he was unable to redeem the jewellery, the Applicant’s father committed suicide. The Applicant’s uncle threatened the Applicant that he would kill him if he could not return the jewellery.

6.  The Applicant could not redeem the jewellery. He could not make any more repayment to his creditor either from May 2010. In July 2010, the creditor sent his men to harass the Applicant. They threatened to kill the Applicant if he failed to pay.

7.  In late 2010, the Applicant was attacked by some armed men sent by the creditor. He was injured but managed to escape. The Applicant had to be hospitalised. He did not report the matter to the police. The assailants had warned his wife that no report should be made to the police.

8.  The Applicant moved to live in another place after leaving the hospital in February or March 2011. His wife told him there were gangsters coming to find him every month. Those men threatened to kill the Applicant. They again warned the Applicant’s wife that she should not make any report to the police.

9.  In late 2011, the Applicant moved further and stayed in the new place for six months. However, he learnt some villagers there had connection with the creditor and the latter started looking for him in that area.

10.  In 2012, the Applicant moved to another location. He learnt from his wife that there were still gangsters coming to find him a few times every month.

11.  The Applicant said he could not seek assistance from the India police or authorities because ADMK was the ruling party in the state where he lived. His creditor was a minister of ADMK and had influence on the authorities.

12.  The Applicant thought internal relocation was not possible since his creditor could find him through ADMK’s network in the country.

13.  On 4 May 2014, the Applicant left India. He entered Hong Kong as visitor and was allowed to stay until 19 May 2014. However, he overstayed. The Applicant was arrested by the police on 20 May 2014. On 23 May 2014, he lodged a non-refoulement claim.

14.  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].

15.  On 2 February 2018, the Applicant applied for leave for judicial review.

Timeline

16.  Things happened in this order: –

2014-5-4	The Applicant left India. He entered Hong Kong on the next day as visitor. He was allowed to stay until 19 May 2014. He overstayed.
2014-5-20	The Applicant was arrested by the police.
2014-5-23	The Applicant lodged a non-refoulement claim.
2016-3-3	The Director interviewed the Applicant.
2016-3-21	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”]
2017-8-14	The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk).
2017-8-28	The Applicant failed to submit any additional facts by the deadline or thereafter.
2017-8-30	The Director refused the Applicant's claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”]
2017-9-27	The Applicant appeared before the Board for appeal.
2018-1-19	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
2018-2-2	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 complaint on a rehearing basis.

18.  In Re Moshsin Ali, the Court of Appeal ruled “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 Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.

The Board’s decision

20.  On 21 March 2016, the Director decided the Applicant failed to establish any torture risk, persecution risk or CIDTP risk (BOR3 risk). He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.

21.  On 30 August 2017, the Director decided the Applicant also failed to establish any life risk (BOR2 risk).

22.  The Applicant appealed to the Board. On 27 September 2017, the Applicant appeared in person before the Adjudicator.

23.  The Adjudicator found there were glaring contradictions between the Applicant's (i) first statement made to the Director on 23 May 2014, (ii) non-refoulement claim form (“NCF”) dated 17 December 2015 and (iii) screening interview by the Director on 3 March 2016. For example, the Applicant originally said his creditor was called Rajan Chellappa. Later, he changed to say the creditor was Sellur Raju. The Adjudicator found the Applicant unreliable. [6]

24.  The Adjudicator considered that even on the Applicant's account of events (which the Adjudicator did not accept), the complained situation was only about money dispute of a private nature. The state was not involved. The Applicant was not a target of the state. His alleged enemies were not acting in official capacity. The Adjudicator also noted that the Applicant had not been inflicted with severe ill-treatment. He found there were no substantial grounds for believing the Applicant would face any torture risk, persecution risk, BOR3 risk or BOR2 risk.[7]

25.  In any event, the Adjudicator was satisfied that internal relocation was viable in the Applicant's case. [8]

Grounds for judicial review

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

27.  The Applicant complained he did not have legal representation for appeal. There was also lack of language assistance. The Applicant said he was not given a translation of his non-refoulement claim form (“NCF”). He thus had no means to find out if the interpreter had been translating the basis of his claim properly.

28.  The Applicant further complained he had not received the Director's letter inviting him to submit additional facts for the consideration of BOR2 risk. He did not know the Director had decided on the issue or how he decided on it since the Director did not explain properly in his further decision.  The Applicant complained there was no translation of the Director's correspondences. He said the interpreter in the appeal hearing did not explain to him there was a decision on BOR2 risk and that it would form part of the appeal.

29.  The Applicant accused the Adjudicator failed to properly consider COI in relation to the malpractice of the India police and authorities. The Adjudicator also decided wrongly on the issue of state protection.

30.  Lastly, the Applicant complained the Director was excused from the appeal hearing on 27 September 2017.

Court hearing

31.  In Form 86, the Applicant requested a hearing.  The hearing was scheduled for 22 June 2018. The Applicant did not appear.

32.  Up to today, the court has not heard from the Applicant.

Discussion

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

34.  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’.[9]

Lack of legal representation

35.  The Applicant complained he had not been provided with legal assistance for the appeal. He had legal assistance from the Duty Lawyer Service up to the Director's decision dated 21 March 2016.

36.  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.[10] There is no evidence the Applicant had reapplied for legal assistance from the Duty Lawyer Service after the Director's decision. The Applicant also failed to demonstrate to 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.

Lack of language assistance

37.  The Applicant complained he had not been given sufficient interpretation/translation assistance.

38.  The Applicant had Form 86 and his affirmation for judicial review prepared in English. Apparently, he could find someone to assist him with interpretation/ translation and handling 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 English documents.  His suspicion that the interpreter had not properly translated/interpreted the basis of his claim in the non-refoulement form (“NCF”) was mere speculation.

BOR2 risk

39.  The Applicant complained he had not received the Director’s letter inviting him to submit on the issue and that he was not aware the Director had decided on the issue. He complained the Director had not explained his further decision properly. He also said he did not know BOR2 risk had become a subject matter of the appeal and the interpreter in the Board hearing failed to explain to him BOR2 risk was also an issue for consideration.

40.  The Director’s letter and the Director's further decision were duly sent to the Applicant's reported address. There was no evidence of returned mails or that the mails were misdirected. There was simply nothing to support the Applicant's bare assertion that he did not get the Director’s letter and the Director's further decision. In any event, the Applicant failed to demonstrate to this court that he really had more facts or information to submit on the BOR2 issue.

41.  The Applicant had not submitted additional information to the Director. The Director was entitled to consider the Applicant’s claim on BOR2 risk without holding further interview.

42.  The Director's further decision (on BO2 risk) must be read in conjunction with his earlier decision dated 21 March 2016 (on the other three applicable grounds), where the Director had made a careful and detailed analysis of the Applicant's case.

43.  I do not accept the Applicant's bare assertion that he was not aware the Director had decided on the BOR2 issue and that BOR2 risk was an applicable ground to be considered in the appeal hearing.

COI

44.  The Applicant said the Board failed to properly consider relevant COI and wrongly decided that state protection was available to him.

45.  The Adjudicator found the Applicant was unreliable and there were no substantial grounds for believing he faced any risk that warranted non-refoulement protection. The Adjudicator, therefore, did not and need not deal with the issue of state protection because the Applicant faced no risks.

The Director's absence from the appeal hearing

46.  The Applicant complained the Board allowed the Director to be excused from the appeal hearing on 27 September 2017. I cannot see how the Director’s absence would prejudice his appeal.

47.  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. The Adjudicator made no errors of law and there was no procedural unfairness. He had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been give reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the Applicant's case. 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. There is no substance in the Applicant’s complaints.

Conclusion

48.  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 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