ISHTIAQUE AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 233/2018

[2020] HKCFI 1270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 233 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 refused.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of India who last arrived in Hong Kong on 13 July 2007 with permission to remain as a visitor up to 27 July 2007 when he did not depart but instead overstayed until he was arrested by the police on 26 October 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his creditors for failing to repay his loans.  He was later released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Kidderpore, Kolkata, West Bengal, India. After leaving school he first worked as a construction worker, and later in 2005 started his own garment and electronics trading business, and for the next two years he borrowed various loans from three wealthy and influential businessmen with political connections,but when he suffered business losses and was unable to keep up with his loans repayments,his creditors would threaten him with violence.

3.  On 13 July 2007 he travelled to Hong Kong to purchase goods in the hope of carrying on with his business in order to repay his loans, but when he lost his passport and money, he decided not to return to India to avoid the threats from his creditors, and so he overstayed in Hong Kong until his arrest by the police in October 2008 when he then raised his torture claim and completed a Torture Claim Form (“TCF”) on 9 January 2014,and upon the commencement of the Unified Screening Mechanism his claim was taken as a non-refoulement claim for which he completed a Supplementary Claim Form (“SCF”)on 5 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 30 December 2014 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

5.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditors upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there was no real intention on the part of his creditors to seriously harm or kill him other than to press him for repayments, that his problems with them were private personal monetary disputes without any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”)show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other area in India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his creditors to locate him.

6.  By a Notice of Further Decision dated 24 October 2016 the Director again rejected the Applicant’s claim upon receiving no response from him to an earlier invitation to submit additional facts or representation which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non- derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

7.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 14 January 2015, and for which he attended an oral hearing on 21 December 2016 before the Board but declined to give any oral evidence or to answer any questions put to him by the adjudicator for the Board.  On 1 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board found the Applicant’s account of events leading to his indebtedness to his creditors earlier given to the Director in his TCF and SCF as well as his screening interview before the immigration officer vague, lacked details and inconsistent,and in the absence of any supporting documentary evidence such as loan agreements that the Board found necessary for him to explain and clarify at the oral hearing of his appeal but which he declined to do so.  In the premises and on the basis of the materials available before it the Board found serious doubts on the credibility of his claim, and concluded that the Applicant failed to substantiate his alleged fear of harm from his creditors under any of the applicable grounds.

9.  On 13 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

     (1)     lack of legal representation in his appeal before the Board;

     (2)     lack of language assistance in the preparation of his appeal before the Board;

     (3)     failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk;

     (4)     failure to give any reason why the attendance of any representation of the Director was excused from the oral hearing of his appeal before the Board; and

     (5)     failure on the part of the Director to rely on relevant COI in assessing state protectionand whether the situation in India had improved before deciding that it would be safe for him to return to India.

10.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standardsof fairness laid down in Secretary for Securityv Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process,and I do not think this ground is reasonably arguable.

12.  As for his complaint under Ground (2) of not being provided with language assistance in his preparation for his appeal to the Board, it is clear that his TCF and SCF were completed on his instructions to his legal representation from DLS, and that most of the documents in his hearing bundle such as the Director’s decisions had in fact all been made available to him earlier when he still had legal representation and assistance from DLS, and that at his oral hearing before the Board he was assisted by an interpreter but he declined to give evidence or answer any questions from the Board. As such and in the absence of any particulars or specifics to demonstrate that the basis of his claim had indeed been wrongly interpreted or understood by the Board, I find this complaint of the Applicant simply speculative and without any basis or merits.

13.  Regarding his Ground (3) it is plainly wrong for the Applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 5 – 6 of his Notice of Further Decision explain his reasons for rejecting the Applicant’s claim under BOR 2 risk.  There is again no basis for this complaint of the Applicant.

14.  As for his complaint under Ground (4) over the non-attendance of the Director or his representative at the appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non- attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the Applicant either.

15.  Similarly his complaint under Ground (5) of the Director’s failure to rely on relevant COI to assess the situation and state protection in India is again factually incorrect, as the Director did clearly and in my view adequately refer to the relevant COI to properly assess the situation of state and police protection in India in his thorough and detained analysis and reasoning set out in paragraphs 15.1 – 15.6 of his decision.  As such there is again no basis or merits in this complaint of the Applicant either.

16.  As already noted above, the Applicant refused to give oral testimony or to answer questions from the Board to clarify or elaborate his evidence in the documents at the invitation of the adjudicator, and in the absence of any supporting documentary evidence there was no objective evidence to support his material assertions of not just one but several loans from three different creditors.  Based on its evaluation of evidence, the Board was entitled to, and in my view correctly rejected the Applicant’s claim on the basis of his failure to substantiate his claim.

17.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board,there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

19.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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