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HCAL767/2018
[2019] HKCFI 1406
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 767 of 2018
BETWEEN
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Bind Ashoke Kumar |
Applicant |
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and |
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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 34 (DOB: 20 August 1984).
2. The Applicant claimed he would be harmed or killed by his creditors Zakir and Akhtar.
3. The Applicant said he met a man called Munna in 2008. Munna claimed to be a businessman and offered the Applicant employment. The Applicant had to travel to China and Thailand to purchase goods for Munna’s business. Munna required the Applicant to pay 20,000 rupees as security to prevent him from appropriating the purchased goods.
4. In 2011, Munna said he was in need of money. He asked the Applicant to help him to borrow 30,000 rupees from Zakir and Akhtar. Zakir and Akhtar belonged to the Communist Party of India (Marxist) [“CPI(M)”]. They were the local leaders of their party in Khidderpore. They had good relationship with the police and had connections all over India.
5. A week later, Zakir and Akhtar chased the Applicant for repayment. The Applicant had given the money to Munna, so he was unable to repay Zakir and Akhtar. The two creditors gave the Applicant a week’s time.
6. The Applicant spoke to Munna but to no avail. The Applicant was later assaulted by Zakir and Akhtar when he could not pay them money. The two even threatened to kill him.
7. The Applicant went to the police station to report the matter. However, the police refused to register his complaint. They asked the Applicant to resolve the matter with Zakir and Akhtar.
8. The Applicant spoke to Munna. Munna said he would talk to Zakir and Akhtar. The Applicant heard no more from Zakir and Akhtar. He assumed the matter was settled. He continued to work for Munna and went overseas with him to purchase goods.
9. In September 2013, Zakir and Akhtar chased the Applicant for payment again. The Applicant could not pay. He was assaulted but managed to escape. The Applicant spoke to Munna, who advised the Applicant to flee to Hong Kong.
10. The Applicant did not believe the India police would assist him. He also thought internal relocation was not viable as Zakir and Akhtar were influential in the country.
11. The Applicant left India for Hong Kong on 21 September 2013. He overstayed from 6 October 2013. He was arrested by the police two odd months later on 29 December 2013. The Applicant raised a non-refoulement claim on 1 January 2014.
12. 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].
13. On 3 May 2018, the Applicant applied for leave for judicial review.
Timeline
14. Things happened in this order: –
| 2013-9-21 |
The Applicant left India and arrived in Hong Kong as visitor. He was allowed to stay until 5 October 2013. |
| 2013-10-6 |
The Applicant began overstaying in Hong Kong. |
| 2013-12-29 |
The Applicant was arrested by the police. |
| 2014-1-1 |
The Applicant raised a non-refoulement claim. |
| 2016-12-23 |
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”] |
| 2018-2-28 |
The Applicant appeared before the Board for appeal. |
| 2018-4-24 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-5-3 |
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 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]
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 his decision dated 23 December 2016, 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
19. The Applicant appealed to the Board. The Adjudicator interviewed him on 28 February 2018.
20. The Adjudicator found the Applicant's evidence inconsistent and vague. For example, the Applicant told the Adjudicator that he borrowed money for Munna in order to enter business with him. However, the Applicant had earlier told the Director that he worked for Munna. The Applicant told the Adjudicator that he did not remember if his creditors had ever assaulted him. However, he had stated in his previous statements that he was beaten by them on two occasions. The Adjudicator also found it fanciful that the two creditors would stop taking action against the Applicant for two years before they pursued him again in 2013. The Adjudicator considered it unreasonable that the Applicant would leave his country rather than relocating himself in India. She did not believe the Applicant and found he had fabricated his claim in order to prolong his stay in Hong Kong.
21. On 24 April 2018, the Adjudicator refused the Applicant's appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
22. 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.
23. The Applicant said he lacked legal representation and language assistance after the Director's decision. He 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.
24. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay.
Court hearing
25. The hearing took place on 4 September 2018. The Applicant was in person. A Hindi interpreter provided service in court.
26. 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.
27. 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
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. 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]
30. The Applicant said there was a lack of legal representation after the Director's decision dated 23 December 2016.
31. 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.
32. 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.
33. The Applicant complained he received the appeal bundle only a few days before the Board hearing.
34. 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.
35. The Applicant said he received appeal bundle on 21 February 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time.
36. 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.
37. 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.
38. The Applicant said he answered all the questions honestly in the Board hearing.[11] That means he knew well what was asked and how to answer. He was not confused.
39. There was no evidence that the Adjudicator had cherry-picked information or taken into account outdated cases or information not officially recognised or simply hearsay.
40. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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. 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. She 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
41. 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
Bind Ashoke Kumar
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 5751/17/1/35/IN1185
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2474/16 (formerly RBCZ/1158/14)
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, paras 31-45.
[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 3.
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