PARWEZ MOHAMMAD SHAHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL195/2018

[2018] HKCFI 2122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 195 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 32 (DOB: 18 March 1986). 

2.  The Applicant claimed he would be harmed or killed by a man called Mukhtar. Mukhtar was a member of the Communist Party of India (Marxist) [“CPI(M)”] while the Applicant's father belonged to a rival party called the Trinomool Congress Party (“TCP”). One night in 2012, Mukhtar and a number of men came for the Applicant's father and assaulted him. The Applicant intervened. He grabbed Mukhtar’s collar. The Applicant was beaten up. Mukhtar even pointed a gun at him. The Applicant believed Mukhtar was about to shoot him. He managed to escape and fled to her aunt’s place.

3.  The Applicant did not report the matter to the police. He knew Mukhtar was a gangster and it seemed the police would not take any action against Mukhtar.

4.  The Applicant stayed in his aunt’s house. He learnt from his father that Mukhtar had come to ask where he was.

5.  The Applicant had been to Hong Kong 3-4 times with his brother for business previously. The Applicant decided to come here for safety. On 29 October 2012, he entered Hong Kong as visitor and was permitted to stay till 12 November 2012. The Applicant did not seek non-refoulement protection during that period. He overstayed.

6.  On 21 November 2012, the Applicant asked the Immigration Department to extend his stay claiming he had lost his passport. However, he failed to report to the Immigration Department on 12 December 2012.

7.  On 26 February 2013, the Applicant was arrested by the police.

8.  In March 2013, the Applicant made a refugee claim with UNHCR (outcome unknown).

9.  On 4 April 2014, the Applicant requested the Immigration Department not to refoule him to India. However, he lost contact with the Immigration Department again.

10.  Almost three years later, on 20 February 2017 the Applicant asked the Immigration Department to re-open his case. He completed the non-refoulement claim form on 29 March 2017. The Applicant explained that he did not apply for non-refoulement protection as soon as he arrived in Hong Kong in October 2012 was because he did not know how to.

11.  The Applicant learnt his family in India had moved to a different place to avoid Mukhtar. However, Mukhtar was able to find the Applicant's father and demanded to know where the Applicant was. Mukhtar had assaulted the Applicant's father and sister-in-law.

12.  Later, the Applicant also learnt from his wife that his brother had been arrested by the police for murder. The Applicant believed it was instigated by Mukhtar.

13.  The Applicant did not think internal relocation was viable because Mukhtar was able to find him wherever he was. The Applicant also said he was a Muslim and there were conflicts between the minority Muslims and the majority Hindus. He claimed the India Prime Minister Modi was also a member of CPI (M) like Mukhtar and the Prime Minister was opposed to the Muslims.

14.  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: (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].

15.  On 8 February 2018, the Applicant applied for leave for judicial review.

Timeline

16.  Things happened in this order: –

2012-10-29	The Applicant entered Hong Kong as visitor. He was permitted to stay till 12 November 2012. He overstayed.
2012-11-21	The Applicant asked the Immigration Department to extend his stay claiming he had lost his passport. However, he failed to return to the Immigration Department on 12 December 2012.
2013-2-26	The Applicant was arrested by the police.
Mar 2013	The Applicant made a refugee claim with UNHCR (outcome unknown).
2014-4-4	The Applicant requested the Immigration Department not to refoule him to India. However, he lost contact with the Immigration Department again.
2017-2-20	The Applicant asked for his case to be re-opened.
2017-3-29	The Applicant completed the non-refoulement claim form.
2017-4-24	The Director interviewed the Applicant.
2017-4-26	The Director 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). [“the Director's decision”]
2017-11-23	The Applicant appeared before the Board for appeal.
2018-1-26	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
2018-2-8	The Applicant applied for leave for judicial review.

Respondent/Interested party

17.  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.

18.  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]

19.  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. 

20.  The Adjudicator did not act 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.

The Director's decision  

21.  The Director did not accept the Applicant faced any real 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.

22.  On 26 April 2017, the Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

The Board's decision

23.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 23 November 2017.

24.  Even on the Applicant's own account of events, the Adjudicator found there was only one scuffle in 2012. The Applicant was merely hurt. The Adjudicator considered Mukhtar could have killed the Applicant if he really wanted to. Mukhtar did not. The Adjudicator did not find Mukhtar would pose any real risk to the Applicant.[6]

25.  As to the claim that Mukhtar was behind the accusation of the Applicant's brother, the Adjudicator considered it was not supported by evidence and was merely the Applicant's speculation.[7]

26.  The Adjudicator also did not accept there was any real and personal risk from the Hindus against the Applicant. The Applicant was wrong to say Mukhtar and the India Prime Minister were of the same party [CPI(M)]. Relevant country-of-origin information ("COI") showed that the Prime Minister at the material time belonged to another party. The Adjudicator did not accept Mukhtar had power and means to find the Applicant if the latter would relocate himself to other parts of India.[8]

27.  The Adjudicator concluded the Applicant faced no real torture risk, persecution risk, BOR2 risk or BOR3 risk. In any event, internal relocation was viable. On 26 January 2018, the Applicant refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.[9]

Grounds of judicial review

28.  In his affirmation, the Applicant complained the Adjudicator unlawfully fettered his 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.

29.  The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; 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 violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; misdirected in law; applied the wrong standard of proof.

30.  The Applicant mentioned he was not represented for appeal to the Board. He 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 of what happened. He complained the Adjudicator failed to make appropriate arrangements.

31.  Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.

Court hearing

32.  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.

33.  The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add.

34.  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

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

36.  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’.[10] 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.” [11].

37.  It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s decision dated 26 April 2017 covered all the four applicable grounds including BOR2 risk.

38.  The Applicant mentioned he was not represented for appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 26 April 2017. There was no evidence to show the Applicant had re-applied to the Duty Lawyer Service for assistance.

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.[12] 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.

40.  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. 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 English documents.

41.  The Applicant complained he received the appeal bundle only a few days before the Board hearing.

42.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[13] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[14], 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.

43.  The Director stated in his letter dated 28 June 2018 that the appeal bundle was served on the Applicant on 16 November 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.

44.  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.

45.  A few days 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 his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

46.  The Applicant said he answered all the questions honestly in the Board hearing.[15] That would mean he knew well what was asked and how to answer. He was not confused.

47.  The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he had actually found the Applicant failed to establish any real torture risk, persecution risk, BOR2 risk or BOR3 risk. There was also no necessity to call psychological or psychiatric reports. And the reliance on COI was rightly minimal.[16]

48.  The Applicant complained the Adjudicator failed to make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights. First, the Applicant failed to prove there were such violations in his country. Secondly, he failed to show how they would be relevant to his own case.

49.  There was no evidence that the Adjudicator had cherry-picked information or taken into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.

50.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision 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 of the Applicant's case. He 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

51.  The Applicant's complaints are not reasonably arguable. He has no reasonable 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 31-32.

[7] Ibid., para 33.

[8] Ibid., paras 34-36.

[9] Ibid., paras 37-39.

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

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

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

[13] 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.

[14] 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.

[15] The Applicant's affirmation, Point 5 on page 18.

[16] The Board's decision, para 36.