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HCAL612/2018
[2019] HKCFI 30
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 612 of 2018
BETWEEN
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Hossain Afzal |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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 28 (DOB: 19 December 1980).
2. The Applicant claimed he would be harmed or killed by a moneylender called Sheikh.
3. In mid-2010, the Applicant borrowed 5 million rupees from Sheikh to run his business. Sheikh was a powerful moneylender with connection to a political party called the Trinamool Congress (“TMC”). His cousin was a member of the Legislative Assembly in Kolkata. Sheikh and his cousin had good connection with the police.
4. The Applicant was able to repay Sheikh until 2013, when one of his customers had defaulted payment for months. The Applicant told Sheikh that he was unable to pay him and asked for time. Sheikh would not agree and threatened to kill the Applicant if he failed to pay.
5. In July 2014, Sheikh came with some men to demand payment. The Applicant could not pay. Sheikh pushed the Applicant to the floor and threatened to maim or even kill the Applicant.
6. The next day, Sheikh and his men came again to make the same demand with threat. The Applicant dared not go out of his house to meet them. On the day following, he left home to stay in his aunt’s place for two months until September. He then returned home as he was homesick. On the road, he was intercepted by one of Sheikh’s men. Sheikh later came and assaulted him. Some passers-by intervened and stopped the assault.
7. The Applicant dared not complain to the police. He hid himself in his aunt’s place again. Later, he came to Hong Kong.
8. According to the immigration record, the Applicant had been convicted of overstaying in Hong Kong years ago in 2002. He had also been in Hong Kong in 2014 from 9 July to 6 August, from 30 August to 29 September and from 20 October to 15 November. He made one side trip to China during those three previous stays in 2014.
9. On 18 December 2014, the Applicant again entered Hong Kong. He made side trips to China. On 1 February 2015, he last entered Hong Kong. He surrendered to the Immigration Department on 26 February 2015 but raised a non-refoulement claim only on 26 May 2015.
10. The Applicant said his wife told him Sheikh and his men kept on looking for him and threatened to kill him until he would pay up.
11. The Applicant said state protection was not available because Sheikh was connected with TMC, which was in power.
12. The Applicant said internal relocation were not viable since Sheikh could find him anywhere in India.
13. 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].
14. On 11 April 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| 2014-12-18 |
The Applicant again entered Hong Kong. He made side trips to China. On 1 February 2015, he last entered Hong Kong. He was allowed to stay till 15 February 2015. [The Applicant had been convicted of overstaying in Hong Kong as early as 2002. He had also been in Hong Kong in 2014 from 9 July to 6 August, from 30 August to 29 September and from 20 October to 15 November. He made one side trip to China during those three previous stays in 2014.] |
| 2015-2-16 |
The Applicant began overstaying in Hong Kong. |
| 2015-2-26 |
The Applicant surrendered to the Immigration Department. |
| 2015-5-26 |
The Applicant raised a non-refoulement claim. |
| 2017-4-3 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [“the Director's decision”] |
| 2018-3-8 |
The Applicant appeared before the Board for appeal. |
| 2018-3-29 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-4-11 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
16. 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.
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]
18. 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 decision
19. In his decision dated 3 Aril 2017, 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 non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 3 March 2018.
21. The Adjudicator found there were many unconvincing features in the Applicant's allegations. He noted the Applicant had been to Hong Kong three times between July 2014 and November 2014. That was not consistent with the Applicant's claim that he was hiding in his aunt’s place from Sheikh then. The Adjudicator further noted the Applicant did not apply for non-refoulement protection immediately when he came to Hong Kong again on 18 December 2014. The Applicant did not apply for asylum even when he last entered Hong Kong on 1 February 2015 or when he surrendered to the Immigration Department on 26 February 2015. He raised his non-refoulement claim only on 26 May 2015. The Applicant explained to the Director that he had waited to see how his problem went. Apparently, the Adjudicator was not satisfied with the Applicant's explanation for his delay. The Adjudicator did not find the Applicant credible. He did not accept the Applicant's claim of risk.
22. The Adjudicator found that even on the Applicant's own account of events, there was no torture risk, persecution risk, BOR2 risk or BOR3 risk. In any event, internal relocation was viable in the Applicant's case.
23. On 29 March 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
24. 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.
25. The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.
26. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
27. The hearing took place on 20 July 2018. The Applicant was in person. A Hindi interpreter provided service in court.
28. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation.
29. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim. He complained they did not understand his claim.
Discussion
30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
31. 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]
32. The Applicant complained the Adjudicator did not understand his claim. The Adjudicator’s report showed he well grasped the Applicant's case and analysed the Applicant's claim in depth.
33. The Applicant mentioned he was not represented at the appeal stage. He had been represented by the Duty Lawyer Service up to the Director's decision dated 3 April 2017.
34. 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.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
35. 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, he was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
36. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
37. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], 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.
38. The Applicant said he received the appeal bundle on 1 March 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 8 March 2018. The bundle was served on the Applicant in time.
39. 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. There was no evidence to show the bundle was difficult or voluminous.
40. A few days certainly were 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 his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
41. The Applicant said he answered all the questions honestly in the Board hearing.[11] That would mean he knew well what was asked and how to answer. He was not confused.
42. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases or information not officially recognised or simply hearsay.
43. 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
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 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
Hossain Afzal
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
Putative Respondent’s ref. no.:
USM 6851/17/4/127/IN1334
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 674/16 (formerly RBCZ 11891/15)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] 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.
[10] 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.
[11] The Applicant's affirmation, Point 8 on page 4.
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