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HCAL484/2018
[2019] HKCFI 1402
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 484 of 2018
BETWEEN
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Nizamuddin |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 30 (DOB: 12 June 1988).
2. The Applicant claimed he would be harmed or killed by people of All India Trinamool Congress (“TMC”) because he was a member of their rival, the Communist Party of India (Marxist)[“CPI(M)”].
3. The Applicant said he became a member of CPI(M) in November 2012. He participated actively in the party’s activities. CPI(M) was in rivalry with TMC, which was the ruling party in India.
4. In late 2012, the Applicant was told by his parents that some police officers had come to look for him. They took the Applicant’s brother to the police station and beat him up to inquire the Applicant’s whereabouts. The Applicant's brother refused to disclose where the Applicant was.
5. In February 2013, the Applicant participated in a rally held by CPI(M) in Kolkata. Some armed TMC members came to cause disruption. The Applicant was unhurt but his friend got injured. However, no report was made to the police.
6. Later, the Applicant's friend Jahid took the Applicant and a few others to seek revenge on two of the TMC assailants. They injured the two TMC members. The Applicant dared not stay at home. In February or March 2013, he moved to live with his brother in Mumbai. Nothing happened there.
7. The Applicant returned home later. His family told him the TMC people had come to look for him. Those men hurt the Applicant's family members and damaged the properties. The Applicant left home again to live in another village. He was told by his family that the TMC people kept coming to look for him.
8. The Applicant decided to leave India. He entered Hong Kong as visitor on 27 May 2013. He overstayed from 11 June 2013. On 17 June 2013, he surrendered to the Immigration Department. The Applicant raised a non-refoulement claim on 13 March 2014.
9. 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].
10. On 26 March 2018, the Applicant applied for leave for judicial review.
Timeline
11. Things happened in this order: –
| 2013-5-27 |
The Applicant left India and arrived in Hong Kong as visitor. He was allowed to stay until 10 June 2013. |
| 2013-6-11 |
The Applicant began overstaying in Hong Kong. |
| 2013-6-17 |
The Applicant surrendered to the Immigration Department. |
| 2014-3-13 |
The Applicant raised a non-refoulement claim. |
| 2017-2-16 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk (iii) BOR3 risk and (iv) BOR2 risk. [“the Director’s decision”] |
| 2018-1-31 |
The Applicant appeared before the Board for appeal. |
| 2018-3-14 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-3-26 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
12. 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.
13. 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]
14. 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 Director's decision
15. In his decision dated 16 February 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or 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 claim with respect to all the four applicable grounds.
The Board's decision
16. The Applicant appealed to the Board. The Adjudicator interviewed him on 31 January 2018.
17. The Adjudicator found the Applicant had not been telling the truth.
18. However, even on the Applicant’s own account of events the Adjudicator still considered the Applicant failed to establish any risk that warranted non-refoulement protection. There was no evidence of real risk. Nothing happened to the Applicant when he moved away from his home in Khidderpore. The Applicant had not been harmed by his alleged enemies. There was no evidence of state instigation, consent or acquiescence. The Applicant was not targeted by the state. The Adjudicator considered that if the alleged enemies really had any influence, that would be limited to Khidderpore only. There was no need for the Applicant to leave India to seek protection elsewhere. The Adjudicator found the Applicant’s complained situation was only a personal dispute between him and some TMC members. It was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Adjudicator was satisfied reasonable state protection and internal location were available to the Applicant in any event.
19. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 14 March 2018, he refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
20. 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.
21. The Applicant also complained he was given the appeal bundle only a few days before the appeal 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 during the appeal hearing. He complained the Adjudicator failed to make appropriate arrangement.
22. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.
Court hearing
23. The hearing took place on 4 September 2018. The Applicant was in person. A Hindi interpreter provided service in court.
24. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to his grounds.
25. 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
26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
27. 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]
28. The Applicant complained there was a lack of legal representation after the Director's decision dated 16 February 2017.
29. 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.
30. 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 being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
31. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
32. 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.
33. The Applicant said he received the appeal bundle on 24 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time.
34. 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.
35. 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.
36. 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.
37. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases or information not officially recognised or simply hearsay.
38. 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. 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.
Conclusion
39. 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 the 14th day of June 2019
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(Henry Ng)
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 the Applicant’s 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 14/6/2019
Nizamuddin
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 14/6/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6355/17/3/10/IN1278
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3233/16 (formerly RBCZ/3000730/14)
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).
[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 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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