SHAIKH ERFAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL102/2018

[2018] HKCFI 2120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 102 of 2018

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 be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of India. He is now aged 43 (DOB: 22 August 1975).

2.  The Applicant claimed he would be harmed or killed by a moneylender called Bobby in India because he could not repay the money owed to Bobby.

3.  The Applicant sold garments and electronic goods in Kolkata. In 2014, the business was bad. A wholesaler called Guddu invited him to be a business partner. The Applicant had to borrow money from a powerful and influential moneylender called Bobby for the investment. He had to make monthly interest payment and to repay the principal in one year’s time.

4.  The Applicant and Guddu went to Hong Kong to do business. They came here in January 2015. They came again on 29 April 2015. This time, Guddu asked the Applicant to give him the purchasing money. He then disappeared. The Applicant had no money. He dared not return to India because he could not repay Bobby.

5.  The Applicant learnt from his parents in India that Bobby had come to demand repayment. Bobby was very angry when he was not paid.

6.  Later, Bobby came again with some men. He threatened the Applicant’s parents that he would harm the Applicant and leave him disabled if the Applicant could not make repayment. The men assaulted the Applicant’s father but the matter was not reported to the police. The Applicant's parents feared Bobby because he was a powerful man. Bobby’s brother was an active member of All India Trinamool Congress (“TMC”), which was the ruling party in Kolkata. The Applicant said the police would not do anything against Bobby’s brother.

7.  Bobby and his men kept on harassing the Applicant’s parents. In mid-May 2015, they broke into the Applicant’s shop.

8.  The Applicant dared not return to India. His visitor’s visa in Hong Kong expired on 13 May 2015. He surrendered to the Immigration Department on the next day. In June 2015, the Applicant raised a non-refoulement claim.

9.  In March 2016, the loan principal was due. Bobby threatened to evict the Applicant’s parents from their house.

10.  The matter had never been reported to the India police. The Applicant said the police had connection with political parties. Since Bobby’s brother was affiliated to TMC, the police would not do anything for the Applicant. They would only help the rich.

11.  The Applicant did not think he could relocate to other parts of India as he lacked the means to do so.

12.  In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), 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: risk of torture,[1] risk of persecution,[2]  risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]  and risk of violation of the right to life (BOR2 risk)[4].

13.  On 22 January 2018, the Applicant applied for leave for judicial review.

Timeline

14.  Things happened in this order: –

2015-4-29	The Applicant last entered Hong Kong as visitor. He was permitted to stay until 13 May 2015.
2015-5-14	The Applicant surrendered to the Immigration Department.
2015-6-16	The Applicant raised a non-refoulement claim.
2016-5-24	The Director interviewed the Applicant.
2016-5-31	The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR3 risk).  [“the Director’s decision”]
2017-6-6	The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk).
2017-6-20	The Applicant failed to submit additional facts by the deadline or thereafter.
2017-6-22	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”]
2017-11-3	The Applicant appeared before the Board for appeal.
2018-1-19	The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”]
2018-1-22	The Applicant applied for leave for judicial review.

Respondent/Interested party

15.  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.

16.  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]

17.  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

18.  In the Director’s decision dated 31 May 2016, the Director did not accept the Applicant faced any real torture risk, persecution 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 non-refoulement claim with respect to those three applicable grounds.

19.  In the Director’s further decision dated 22 June 2017, the Director considered the Applicant failed to establish there was a personal and real risk of his rights under the Hong Kong Bill of Rights being violated (including the right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).

The Board’s decision

20.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 3 November 2017.

21.  The Adjudicator found many unconvincing features in the Applicant’s claim. She did not find the Applicant’s evidence credible or reliable. [6]

22.  The Adjudicator considered reasonable state protection and internal relocation were available to the Applicant in any event. [7]

23.  The Adjudicator found the Applicant failed to establish any real risk that warranted non-refoulement protection. On 19 January 2017, she refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR 2 risk.[8]

Grounds of judicial review

24.  In Form 86 and his affirmation, the Applicant complained the Adjudicator unlawfully fettered her 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 also 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. He complained the Adjudicator failed to make appropriate arrangement.

26.  The Applicant further complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay.

Court hearing

27.  In Form 86, the Applicant requested a hearing.  The hearing took place on 26 June 2018. The Applicant was in person. A Hindi interpreter provided interpretation 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 documents. He had nothing to add.

Discussion

29.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

30.  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 that “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]

31.  The Applicant complained that he received the appeal bundle only on or about 26 October 2017 before the Board hearing scheduled for 3 November 2017.

32.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[11] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[12], 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 received the appeal bundle 8 calendar days (or 6 working days after excluding a Sunday and a public holiday) prior to the Board hearing. Thus, 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 and there was no evidence to suggest the bundle was voluminous or difficult.

35.  A few days’ time certainly was 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. There was no evidence to show the Applicant had so complained to the Adjudicator or asked for adjournment during the appeal hearing.

36.  The Applicant said in his affirmation that he answered all the questions honestly.[13] That would mean he knew well what was being asked and he answered at will. He was not confused.

37.  In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents for him. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

38.  The Applicant mentioned he was not given sufficient legal assistance. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 31 May 2016. There was no evidence to show he had re-applied for legal assistance from the Duty Lawyer Service afterwards.

39.  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.[14] The Applicant failed to show this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

40.  The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that. The Applicant also failed to point out the specifics.

41.  There are other vague complaints. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. She 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 that she was acquainted with the facts. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved 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 the 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

[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 47-64

[7] Ibid., paras 65-73.

[8] Ibid., paras 75-98.

[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[10] CACV 219/2018 [2018] HKCA 570, para 14(1).

[11]  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.

[12] 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.

[13] The Applicant's affirmation, Point 8 on page 3.

[14] CACV 284/2017 Re Paswan Shibu Lal, para 21.