MOHAMMED ZAHID QAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL354/2018

[2018] HKCFI 2124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 354 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 41 (DOB: 2 January 1977).

2.  The Applicant claimed he would be harmed or killed by his creditor Rakesh in India.

3.  The Applicant ran a trading business in India. He had travelled to Hong Kong and China for business many times since 2001. On one occasion, he overstayed in Hong Kong and was arrested by the police on 30 May 2002. He left Hong Kong later that year.

4.  The Applicant subsequently travelled to Hong Kong again on a number of occasions between 2006 and 2016. He last entered Hong Kong on 29 June 2016 from China as visitor. He was allowed to stay until 13 July 2016. However, he overstayed and surrendered to the Immigration Department on 14 July 2016 to raise a non-refoulement claim.

5.  The Applicant said that in August 2013 he borrowed 4 million Indian rupees from a moneylender called Rakesh, who was a leader of the Indian National Congress Party. Rakesh was an influential man and related to gangsters. He was also connected with the police and would bribe the latter for assistance.

6.  At first, the Applicant was able to make payment to Rakesh. However, two of his major customers defaulted payments. The Applicant had become unable to repay Rakesh since June 2015.

7.  In July 2015, Rakesh sent some men to the Applicant’s home. Those men were armed with knives and pistols. They threatened to kill the Applicant if he did not repay Rakesh.

8.  The Applicant did not make any report to the police because he thought it was a private dispute. He believed the police would not help him since Rakesh had bribed the police.

9.  In August 2015, Rakesh’s men harassed the Applicant again. They had knives and pistols. They threatened to kill the Applicant and to kidnap his children if he failed to make payment. The men caused damage to the Applicant’s house. The Applicant was assaulted but not seriously injured.

10.  This time, the Applicant made a report to the police but the police refused to register his complaint. The police merely said they would contact Rakesh for investigation. In fact, they did not take any action.

11.  In September 2015, Rakesh and a few men went to the Applicant’s home again to threaten him. The Applicant made no report to the police.

12.  In December 2015, Rakesh and some armed men assaulted the Applicant. The Applicant was hurt badly. He reported the matter to the police but the police did not register his complaint.

13.  The Applicant's landlord knew of the situation. He asked the Applicant to leave to save troubles. The Applicant moved to live elsewhere but he continued to receive threatening phone calls from Rakesh.

14.  The Applicant still had to run his business. For that purpose, he left India and travelled to Hong Kong again in early 2016. After the Applicant had left, Rakesh found out where the Applicant's wife lived and sent his men to check on her.

15.  The Applicant later returned to India but left the country again on 18 May 2016.

16.  In June 2016, the Applicant was told by his wife that Rakesh’s men had been looking for him and causing harassment. They threatened to kill the Applicant.

17.  The Applicant last entered Hong Kong from China on 29 June 2016 as visitor. He was allowed to stay till 13 July 2016. He surrendered to the Immigration Department on 14 July 2016 and subsequently raised a non-refoulement claim.

18.  The Applicant said he did not seek asylum earlier because he had no intention to claim protection until his wife told him Rakesh continued to look for him with his men including a gangster called Manoj Singh. Manoj Singh was a cousin of Rakesh and had political connections. He threatened the Applicant's wife that he would kill the Applicant.

19.  The Applicant thought the India police would not protect him. He said internal relocation was not viable either because Rakesh had many contacts and could find him anywhere in India.

20.  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].

21.  On 6 March 2018, the Applicant applied for leave for judicial review.

Timeline

22.  Things happened in this order: –

2001-2002	The Applicant came to Hong Kong as visitor. In 2002, he overstayed in Hong Kong and was arrested by the police on 30 May 2002. He left Hong Kong later that year.
2006-2016	The Applicant travelled on a number of occasions to Hong Kong.
2016-5-18	The Applicant left India.
2016-6-29	The Applicant last entered Hong Kong from China as visitor. He was allowed to stay until 13 July 2016. However, he overstayed.
2016-7-14	The Applicant surrendered to the Immigration Department and subsequently raised a non-refoulement claim.
2016-11-22	The Director interviewed the Applicant.
2016-12-15	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”]
2018-1-10	The Applicant appeared before the Board for appeal.
2018-3-1	The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”]
2018-3-6	The Applicant applied for leave for judicial review.

Respondent/Interested party

23.  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.

24.  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]

25.  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

26.  In the Director’s decision dated 15 December 2016, the Director did not accept the Applicant faced any real torture risk, persecution risk, BOR2 risk or BOR3 risk that warranted non-refoulement protection. 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

27.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 10 January 2018.

28.  The Adjudicator accepted the Applicant had borrowed money from Rakesh but she had considerable doubt of the Applicant’s allegation regarding the actions taken by Rakesh to chase him for repayment. The Adjudicator found the Applicant’s description of those actions inconsistent and confused. The account of default payment and the actions taken by Rakesh differed between the Applicant's oral and written statements. The Adjudicator also noted that the Applicant came to Hong Kong on two or three occasions after he had allegedly been beaten up severely by Rakesh in December 2015. Yet, the Applicant did not seek asylum in Hong Kong on those occasions. The Adjudicator did not accept the Applicant’s explanation of not seeking protection but returning to India then. She found the Applicant was not a genuine non-refoulement protection seeker. [6]

29.  In any event, the Adjudicator found reasonable state protection and internal relocation were available to the Applicant even if he was really threatened with harm by Rakesh.[7]

30.  The Adjudicator found the Applicant failed to establish any risk that warranted non-refoulement protection. She 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).[8]

Grounds of judicial review

31.  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.

32.  The Applicant also complained he was given the appeal bundle only 7 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.

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

Court hearing

34.  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 service in court.

35.  The Applicant said he was a university graduate in India. He could read and write English but not very well. 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

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

37.  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]  Neverthesless, it is stated 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]

38.  The Applicant complained he received the appeal bundle only on or about 3 January 2018 before the Board hearing scheduled for 10 January 2018.

39.  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.

40.  The Applicant received the appeal bundle 7 calendar days (or 6 working days)prior to the Board hearing. Thus, the bundle was served on the Applicant in time.

41.  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 claim was not difficult. There was no evidence to show the appeal bundle was voluminous or difficult.

42.  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. There was no evidence to show the Applicant had complained to the Adjudicator or asked for adjournment during the appeal hearing. There was also no evidence to show the Applicant was confused as to what happened in the appeal. The Applicant said in his affirmation that he answered all the questions honestly.[13] That would mean he knew well what was asked of him and he answered at will. The Applicant was not confused.

43.  The Applicant raised his language problem. He was a university graduate in India. The Applicant admitted he had to read English in the university but his English was not very good and still required language assistance. He said a friend helped him to prepare Form 86 and the affirmation for the current application.

44.  Apparently, the Applicant knew some English and he could also find someone to assist him with interpretation/translation and dealing with English documents. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

45.  The Applicant mentioned he was not legally represented for the appeal. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 15 December 2016. There was no evidence to show the Applicant had re-applied for legal assistance from the Duty Lawyer Service afterwards.

46.  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 also 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.

47.  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.

48.  There are other vague complaints by the Applicant. 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. 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 she was acquainted with the facts of the Applicant's case. 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

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.

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 41-45.

[7] Ibid., paras 46-50.

[8] Ibid., 52-73.

[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 4.

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