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HCAL638/2018
[2019] HKCFI 203
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 638 of 2018
BETWEEN
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Mohammad Mehndi Hassan |
Applicant |
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and |
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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 25 (DOB: 24 August 1993).
2. The Applicant claimed he would be killed by Aktar and Ledla because he was unable to repay money to them.
3. The Applicant said he started to run a phone business in Kolkata in 2012. He ordered goods from Aktar and Ledla on credit. Aktar and Ledla were associated with influential politicians belonging to a political party called the All India Trinamool Congress (“AITC”).
4. The Applicant's shop caught fire in April 2014. He suffered great loss and was unable to pay Aktar and Ledla for the good he had taken from them on credit.
5. Aktar demanded the Applicant to pay for the goods lost in the fire. He threatened to harm or even kill the Applicant. The Applicant offered to work for Aktar but the latter refused the Applicant's suggestion.
6. In April and May 2014, Aktar continued to harass the Applicant and his family. He demanded the Applicant to pay up. Aktar and his men repeated their threats that they would harm or kill the Applicant if he failed to pay. The Applicant asked Aktar to give him time. His father and brothers managed to raise some money for him to make partial payment to Aktar.
7. In May 2014, Aktar’s men got hold of the Applicant and brought him to see Aktar. Aktar blamed the Applicant for not answering his phone calls. He slapped the Applicant a few times.
8. The Applicant planned to go abroad to source goods for sale in India. He told Aktar. Aktar warned the Applicant that he would not spare him if he failed to pay up.
9. On 21 May 2014, the Applicant went to Hong Kong to look for business. He returned to India on 31 May 2014.
10. The Applicant went to Hong Kong again on 16 July 2014. The next day, his elder brother Tanvir was caught by Aktar’s people. They asked him of the Applicant's whereabouts. Aktar was angry to learn the Applicant had gone to Hong Kong. Tanvir was beaten up and seriously injured. He was hospitalised and a report was made to the police.
11. After Tanvir had left the hospital, he was approached by Aktar’s men again. They threatened him that he had to find the Applicant (who was then in Hong Kong). They made a number of threatening calls to the Applicant's family to demand money and asked the Applicant's family to get the Applicant back home. Tanvir told the Applicant of the situation on the phone.
12. The Applicant was told by his family that he should not return to India because Aktar and Ledla were looking for him.
13. The Applicant left Hong Kong for China on 26 July 2014. The next day, he came back to Hong Kong. He overstayed here from 11 August 2014. Five odd months later on 2 February 2015, he was arrested by the police. He subsequently applied for non-refoulement protection. The Applicant said he did not know he could so apply earlier.
14. The Applicant learnt from his family that Aktar and Ledla were still looking for him. He said the police in India would not offer him protection because they favoured Aktar and Ledla, who were rich and had connection with politicians.
15. The Applicant said Aktar and Ledla had wide connection. They could find him in India so internal relocation was not feasible.
16. 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].
17. On 13 April 2018, the Applicant applied for leave for judicial review.
Timeline
18. Things happened in this order: –
| 2014-5-21 |
The Applicant entered Hong Kong as visitor. He left on 31 May 2014. |
| 2014-7-16 |
The Applicant entered Hong Kong again as visitor. He was allowed to stay till 10 August 2014. |
| 2014-7-26 |
The Applicant left Hong Kong for China. |
| 2014-7-27 |
The Applicant last entered Hong Kong as visitor. He was allowed to stay till 10 August 2014. |
| 2014-8-11 |
The Applicant began overstaying here. |
| 2015-2-2 |
The Applicant was arrested by the police. |
| 2015-2-4 |
The Applicant raised a non-refoulement claim. |
| 2017-10-6 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision”] |
| 2018-2-2 |
The Applicant appeared before the Board for appeal. |
| 2018-3-26 |
The Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-4-13 |
The Applicant applied for leave for judicial review. |
Respondents
19. 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.
20. 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.
21. 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 decision. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
22. 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.
23. On 6 October 2017, the Director refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
24. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 2 February 2018.
25. The Adjudicator was prepared to accept there was a fire to the Applicant's shop. However, he found there were inconsistency and exaggeration in the Applicant's account of what happened after the fire. The Adjudicator referred to a number of doubtful and unconvincing features in the Applicant's allegation.[6]
26. The Adjudicator considered the Applicant had not been inflicted with ill-treatment to a minimum level of severity. There was no evidence that the Applicant's alleged enemies would really take his life. The complained situation was not related to any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no state instigation, consent or acquiescence of any form. [7]
27. The Adjudicator considered relevant country-of-origin information ("COI"). He concluded reasonable state protection and internal relocation were available to the Applicant in any event.[8]
28. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 26 March 2018, the Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds.
Grounds of judicial review
29. In his affirmation, the Applicant made complaints against the Director and the Adjudicator. As said in para. 21 above, I would deal with his application in relation to the Board's decision only.
30. The Applicant complained the Adjudicator did not make a balanced consideration of his submission against that of the Director. He accused the Adjudicator only adopted a formula approach in handing his appeal.
31. The Applicant complained there was no interpreter to help him to understand the hearing bundle for his appeal to the Board. He said there was a possibility that certain documents in the bundle might be prejudicial to him due to wrong interpretation/translation because he made his claim in Hindi. He said there should be an interpreter to go through the bundle with him.
Court hearing
32. The hearing took place on 20 July 2018. The Applicant was in person. A Hindi interpreter provided service in court.
33. The Applicant confirmed all the grounds of judicial review were in the affirmation. He complained the Director and the Adjudicator did not consider his case properly.
34. The Applicant confirmed that he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. 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] 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.” [10]
37. The Applicant complained the Adjudicator did not give a balanced consideration of his submission and did not properly evaluate his case. He accused the Adjudicator of adopting a formula approach in handing his appeal.
38. The Board's decision shows the Adjudicator considered the Applicant’s claim in detail. He had a balanced consideration of relevant COI before concluding reasonable state protection and internal relocation were available to the Applicant.
39. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
40. The Applicant complained there was a possibility that certain documents in the bundle might be prejudicial to him due to wrong interpretation/translation because he made his claim in Hindi. However, the Applicant could not point out the specifics.
41. 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
42. 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 judicial review.
Dated 30th 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 30/1/2019
Mohammad Mehndi Hassan
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 30/1/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 8842/17/10/172/IN1670
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2057/17 (formerly RBCZ 10377/15)
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] The Board's decision, paras 60-66.
[7] Ibid., paras 67-80.
[8] Ibid., paras 81-94
[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[10] CACV 219/2018 [2018] HKCA 570, para 14(1).
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