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HCAL127/2018
[2018] HKCFI 1895
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 127 of 2018
BETWEEN
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Rahman Sajid |
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 54 (DOB: 10 January 1964).
2. The Applicant claimed he would be harmed or killed by Abdul Qadir (“Abdul”), who was a loan shark. Abdul was a local leader of a political party called the All India Trinamool Congress (“TMC”). He was influential and had extensive networks.
3. The Applicant said he was a businessman selling garments and electronic goods. In September 2012, he was short of money and thus borrowed 3.5 million Indian rupees from Abdul. He had to pay monthly interest to Abdul and to return the capital within two years.
4. The Applicant travelled to Hong Kong, China and Thailand to purchase goods. At first, his business was performing well. However, a heavy rain in July 2013 caused great loss to his business. He became bankrupt and was unable to repay Abdul.
5. In September 2013, Abdul went to the Applicant's home with some armed men to demand payment. The Applicant asked for time. He was assaulted by the men and got injured. Abdul gave the Applicant one month’s time to pay or he would kill the Applicant.
6. The Applicant complained to the police but the police did not take any action against Abdul. The Applicant said the police in India would only help rich people.
7. Abdul and his men continued to threaten the Applicant. The Applicant was unable to meet the payment deadline so he decided to leave India. On 5 November 2013, he left India for China. He stayed in China for a month. On 6 December 2013, he entered Hong Kong as visitor. He then travelled between Hong Kong and China on a number of occasions to sell rice and spices in China.
8. The Applicant last entered Hong Kong from China on 15 December 2013. He was allowed to stay until 29 December 2013. However, he overstayed from 30 December 2013. He was arrested by the police after two months on 2 March 2014. Then he raised a non-refoulement claim.
9. The Applicant learnt from his wife in India that Abdul was still looking for him.
10. The Applicant also alleged he was a beef-eating Muslim. He said the ruling party in India was the Bhartiya Janata Party (“BJP”). BJP was against beef-eating and Muslims. The Applicant claimed he would be killed as a beef-eating Muslim.
11. The Applicant did not trust the India police. He said the police would only help rich people. If fact, he feared the police would arrest him since he had absconded from court bail in a 2001 gold-smuggling case.
12. The Applicant said it was not safe for him to return to India. He did not think internal relocation was viable. He alleged he lacked the means to do so and that Abdul was a powerful man who had resources to locate him 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
14. On 26 January 2018, the Applicant applied for leave for judicial review.
Chronology of events
15. Things happened in this order: –
| 2013-11-5 |
The Applicant left India for China. |
| 2013-12-6 |
The Applicant entered Hong Kong from China as visitor. Then he travelled between Hong Kong and China to do business by selling rice and spices in China. |
| 2013-12-15 |
The Applicant last entered Hong Kong as visitor. He was permitted to stay until 29 December 2013. |
| 2013-12-30 |
The Applicant began overstaying in Hong Kong. |
| 2014-3-2 |
The Applicant was arrested by the police. |
| 2014-3-4 |
The Applicant lodged a non-refoulement claim. |
| 2017-6-6 |
The Director interviewed the Applicant. |
| 2017-6-15 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk). [“the Director's decision”] |
| 2017-10-25 |
The Applicant appeared before the Board for appeal. |
| 2018-1-18 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-1-26 |
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 Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party.
18. The Adjudicator was not acting in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party.
Director of Immigration (the Director)
19. In the Director’s decision dated 15 June 2017, the immigration officer did not accept the Applicant was a genuine non-refoulement protection seeker because he did not raise such claim when he entered Hong Kong on a number of occasions between 6 December 2013 and 15 December 2013. [During this period, the Applicant travelled between Hong Kong and China to do business by selling rice and spices in China.] The Applicant last entered Hong Kong on 15 December 2013 but he overstayed from 30 December 2013. He was arrested two months later in early March 2014 and he sought non-refoulement protection only then.
20. Even on the Applicant's own account of events, the officer found the level of risk of harm against the Applicant was low. He found the Applicant's alleged situation was only a private dispute and had nothing to do with the state or politics. The officer did not accept the Applicant was targeted by the state or any authorities in India.
21. The officer noted there were reports of police corruption in India. However, there was also objective country-of-origin information (“COI”) showing the government had taken measures to monitor the police and to improve their effectiveness. The office considered reasonable state protection was available to the Applicant. Internal relocation was also viable.
22. The officer did not accept the Applicant had any torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). He refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
TCAB/NCPO (the Board)
23. The Adjudicator found it was probably true that the Applicant had jumped bail in the said 2001 smuggling case in India. However, the maximum sentence to be imposed for the said offences was only seven years’ imprisonment.[5]
24. The Adjudicator was also prepared to attach credence to the Applicant’s claim that he had borrowed money from Abdul and Abdul had threatened to kill him if he could not make repayment. However, the Adjudicator did not accept Abdul was really determined to kill the Applicant or that Abdul was powerful enough to locate the Applicant anywhere in India.
25. The Adjudicator also did not accept the Applicant’s claim that he would be killed for eating beef in India.
26. The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection. He refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
Grounds of judicial review
27. In his affirmation, the applicant complained the adjudicator failed to carry out sufficient research and inquiry of relevant COI; failed to consider relevant and updated COI; placed weight on irrelevant COI; relied on outdated COI or outdated cases; relied on information not officially recognised or simply hearsay; took into account irrelevant/incorrect information or facts; ignored facts/inferences favourable to him; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violation of human rights; failed to call for psychological and psychiatric reports; failed to properly consider the issue of state protection and state acquiescence; misdirected in law; applied the wrong standard of proof; rendered unreasonable/irrational decisions; acted in a procedurally unfair manner.
28. The Applicant also complained about lack of legal representation. He said the Adjudicator failed to take into account he was a self-represented claimant in the appeal.
29. The Applicant further complained the appeal bundle was only served on him a few days before the Board hearing. He said he did not have enough time to obtain language assistance to prepare for the appeal. He was confused of what happened.
30. Although the Applicant did not name the Director as respondent but only as interested party, he complained the Director had not screened his claim with respect to BOR2 risk.
Court hearing
31. In Form 86, the Applicant requested a hearing. The hearing took place on 19 June 2018. The Applicant was in person. A Hindi interpreter provided interpretation service in court.
32. The Applicant said a friend helped him to prepare Form 86 and the affirmation for the application of judicial review. He confirmed all the grounds of judicial review were in the documents. He had nothing to add.
33. The Applicant also confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
35. 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]
36. The Applicant complained he had not been given sufficient legal assistance. He had been represented by the Duty Lawyer Service up to the Director's decision rendered on 15 June 2017.
37. There is no evidence that the Applicant had reapplied for Duty Lawyer assistance for appeal to the Board.
38. 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.[7] The Applicant failed to show this court how his claim was prejudiced or undermined by the lack of legal representation only in the later stages of his claim.
39. The Applicant complained he was only given the appeal bundle a few days before the Board hearing.
40. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[8] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[9], 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.
41. The Director confirmed in his letter dated 20 June 2018 that the bundle was served on the Applicant on 18 October 2017. The appeal hearing took place before the Adjudicator on 25 October 2017. The bundle was served 7 calendar days (or 6 working days) prior to the appeal hearing. It was served on time.
42. 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 and there was no evidence to show the appeal bundle was difficult or voluminous. The Applicant signed to acknowledge he understood what the interpreter had read to him of the bundle index and skeleton submissions of the Director on 18 October 2017.
43. In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application for leave for judicial review. I am sure the Applicant had access to language assistance at all material times if he so wanted. He certainly had exaggerated his problem of understanding and handling English documents.
44. 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 the appeal.
45. There is no evidence to show the Applicant had complained to the Adjudicator that he was short of time for preparation or he was confused. The Applicant gave evidence before the Adjudicator and had not requested for adjournment. I do not accept the Applicant had no sufficient time to prepare for the appeal or that he was confused of what happened.
46. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his findings, conclusions and decisions 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’s report showed he was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
47. The Director is an interested party. I have also reviewed his decision under ‘rigorous examination and anxious scrutiny’. It is wrong for the Applicant to accuse the Director had not screened his claim with respect to BOR2 risk. The Director’s decision dated 15 June 2017 was related to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
48. What has been said of the Adjudicator in paragraph 46 above is also true of the Director. The Director's findings, conclusions and decisions were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. He had also achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
49. 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 the review.
Dated 23rd day of August 2018
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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
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 23/8/2018
Rahman Sajid
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 23/8/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7562/17/6/258/IN1431
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 822/17 (formerly RBCZ 3000073/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] The Adjudicator’s Report, para 67.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
[8] 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.
[9] 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.
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