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

HCAL436/2017

[2018] HKCFI 171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 436 of 2017

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 refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

Exercise of discretion to lift the 42-day stay pending a legal aid application

1.  The applicant applied for legal aid on 17 October and the required memorandum was filed.  Under section 15 of the Legal Aid Ordinance and its regulations, there is usually an automatic stay of proceedings of 42 days following an application for legal aid unless otherwise ordered by the court.  It is in the court’s discretion.  Mr Recorder Kwok, SC, in Bank of China (Hong Kong) Ltd v Fu Ming Kong Michael and Anor HCA 7769 and 3909 of 2000, unreported, 24 June 2005, stated that:

“The purpose of the statutory stay under section 15 of the Legal Aid Ordinance is to allow sufficient time:- (a) for the Director to process an application for legal aid; and (b) in the event of legal aid being granted, for the assigned lawyer(s) to effectively represent the assigned client, and, where appropriate, to apply for more time. The statutory stay is in aid in, not an obstacle to the administration of justice…”

2.  The Court of Appeal in Lee Shiu Ming v Yeo Hiap Seng (Hong Kong) Ltd CACV 39/1993, unreported, set out the principles for the court’s guidance when considering whether to lift the legal aid automatic stay.  The guiding principle is to do what is fair and just between the parties.  Yuen J, as she then was, in Re Ip Lai Fan and Ip Lam On HCSD 10/2000 and 11/2000 (unreported), 3 November 2000, summarised Nazareth JA’s guidance in the Lee Shiu Ming case as follows:

“… the court should be slow to lift a stay before an application for legal aid is determined, especially if a point of law had to be dealt with by a layman. However, if a court was satisfied that the application for legal aid was an abuse of process, then the court should exercise its discretion to lift the stay.”

3.  The chronology of this application is as follows;

On 29 November 2016 the Director of Immigration decided the claim was not substantiated.

On 13 July 2017 the adjudicator (of the Torture Claims Appeal Board) decided the claim was not substantiated.

On 24 July 2017 the applicant filed a Form 86, a notice of application for leave to apply for judicial review.

On 4 August 2017 the court wrote to the applicant at the address supplied by him to confirm if he was represented or was in the process of applying for legal aid.

On 31 August 2017 the court set down a hearing date of 16 November for leave to apply for judicial review as requested and notified the applicant.

On 17 October 2017 the applicant applied for legal aid.

4.  In my view there is no good reason for the timing of the late application for legal aid except to delay the hearing by at least 42 days.  When asked during the hearing who advised him to go to apply for legal aid in October, the applicant replied “nobody, because it was a known fact that he could apply for it.”.  He explained that he took his time to apply because he had high blood pressure, often had no money and rarely left home.  He said he only received the notice of hearing letter.  He also said he was depressed because his claim was completed so quickly.  In my view, the applicant had no good excuse for making this application in July but not applying for legal aid until mid-October and long after the hearing date was set down.  This applicant was abusing the process.  I exercised my discretion and lifted the legal aid automatic stay.  I proceeded with the oral hearing that day.

Observations

5.  The applicant is an Indian national born in Kolkata India, received nine years of education and had a business buying and selling electronic goods for many years.  He arrived in Hong Kong on 31 August 2013 and was permitted to remain for 14 days.  He did not leave as required, overstayed, was arrested by the police for breach of condition of stay on 25 September 2013 and then served a four-week term of imprisonment.  He lodged a non‑refoulement protection claim on 22 October 2013.  This was rejected by the Director of Immigration (“the Director”) on 29 November 2016.  His appeal was later rejected by the Torture Claims Appeal Board (“TCAB”).

6.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in full and in detail in their decisions therefore I only intend to summarise it here.  The basis of his claim was that if he were to return to India he would be harmed or subjected to ill‑treatment by Mr Ansari because he had borrowed money from him and failed to repay him in early 2013.  The applicant says Mr Ansari was a well-known gang leader associated with gang violence.

7.  He borrowed money from him because he wanted to expand his business selling electronic goods.  He was a notorious gang leader/moneylender who was also involved in politics and therefore powerful.  The applicant borrowed 25 or 30 lakh from him with an interest of 5% per month.  He was supposed to return the capital within four to five years.  In 2013, Indian customs confiscated about 15 lakhs worth of goods belonging to the applicant which shut down his business.  It meant he only paid interest to Mr Ansari until early 2013.  Mr Ansari then required him to repay the capital and interest within two months; he refused to extend any time to the applicant.  He sent men to issue verbal threats to the applicant on a frequent basis.

8.  The applicant was harassed at home by his men verbally, in the streets when they saw him and over the phone.  One night in July 2013, Mr Ansari and some men entered his home and beat him up with rods and a chopper.  He was bruised and his palm was cut.  He received treatment at a clinic but did not require stitches.  He has a scar on his hand.  The applicant did not report this to the police because they would only have informed Mr Ansari.  After this attack he left his home and hid in various locations before leaving India in August 2013.

9.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

10.  The adjudicator treated the appeal/petition as a rehearing and arranged an oral hearing on 30 June 2017.  He set out correctly the law and key legal principles for all four applicable grounds.  He analysed the applicant’s evidence and accepted that he was a witness of truth.

11.  He identified that this as a private financial dispute between the applicant and a moneylender.  Despite the applicant’s assertions, there was no evidence Mr Ansari had political backing or that the police were “in his pocket” as suggested.  The applicant made no report to the police or approached the police for assistance, therefore there is no evidence the police would not have helped him.  On the applicant’s own evidence, the injuries he sustained were not severe; not so severe they reached the minimum level of severity required to be defined as torture.

12.  The adjudicator accepted that police corruption in India was rife but there were also reforms ongoing to improve the efficiency and combat corruption; results were encouraging.

13.  The adjudicator then applied the definition of torture under section 37U(1) of Cap 115 to the facts and his findings and found the applicant had failed to establish that there were substantial grounds for believing that he would be at risk of being subjected to torture if he was to be sent back to India.

14.  As far as the BOR 3 risk is concerned, he had been attacked once by Mr Ansari and his henchmen but had only sustained fairly minor injuries; they did not attain a minimum level of severity.  The adjudicator was satisfied on the applicant’s own evidence and facts, there was not a genuine and substantial risk of being subjected to torture or CIDTP if refouled to India.  For the same reasons he was not in danger of being arbitrarily deprived of his life.  The BOR 3 and BOR 2 risk claims failed.

15.  Seeing as his dispute or rather his fear arose from a private financial dispute then he was not in fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.  His persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

16.  The applicant has not made clear in his Form 86 whose decision he seeks to judicial review but I will only consider leave to judicial review the TCAB’s decision.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing.  There is no room for a judicial review of the Director’s decision in this case.

Leave to apply for judicial review

17.  In an application for leave to apply for judicial review, the court is to consider whether the adjudicator has made any error of law or conducted procedures whilst failing to comply with a high standard of fairness as required by law as explained by the Court of Final Appeal in Secretary for Security v Saktheval Prabakar (2004) 7 HKCFAR 187.  In addition, the court will also rigourously examine and anxiously scrutinise the decision-making process and the reasons by which the decision-maker reached his decision; did it satisfy the enhanced Wednesbury test.

18.  The applicant has filed an affirmation but there are no grounds formulated in it.  I did give him an opportunity during the oral hearing to make submissions after having explained to him what the court would look for when considering whether leave ought to be granted.

19.  The applicant submitted that the appeal hearing was not conducted well and because he was not educated the TCAB were not fair to him.  The adjudicator did not consider his appeal properly because he handed down his determination 15 days after the oral hearing.  He said the oral hearing itself was over within 10 to 15 minutes and he was only asked a few questions.  He told the adjudicator that the police in India were very corrupt but it was not considered properly.  He reiterated that the whole process was unfair.

20.  The fact the adjudicator only took just over two weeks to deliver his decision is not indicative that he did not consider the applicant’s appeal properly.  There is no merit in this allegation.  The fact the oral hearing did not take long again is not indicative of a lack of care; the applicant adopted all the information contained in the hearing bundle and confirmed its contents were true and correct.  That meant there was no need to repeat it.  The adjudicator had some matters to clarify with him and did so.

21.  A reading of the decision shows the adjudicator did consider the applicant’s allegation of police corruption at para 39.  The adjudicator agrees that corruption is not uncommon amongst the police force as well as in other government officials but then follows that with a comment that it is also true that there have been reforms going on in India to improve the efficiency.  He says this is revealed in the Country of Origin (“COI”) information of India.  There were many COI documents and references to websites in the appeal bundle which should have been referred to in this decision in more detail to demonstrate how the information was considered objectively and according to a high standard of fairness.  However, in this case, despite the fact this is lacking I am satisfied there is no procedural unfairness.

22.  In fact, there is no evidence of any error of law by the adjudicator, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  None of the grounds were reasonably arguable and there is no realistic prospect of success. I refuse leave for judicial 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