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HCAL116/2018
[2018] HKCFI 1894
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 116 of 2018
BETWEEN
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Ahmed Wasi |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 33 (DOB: 19 August 1985).
2. The Applicant claimed he would be killed by his creditor, Bobby Hakim (“Hakim”).
3. The Applicant and his two partners (Naushad and Jahir) ran a business in Kolkata of West Bengal in India. The business suffered heavy loss. In 2013, the Applicant and his partners borrowed money from Hakim. Jahir later disappeared with most of the money. The Applicant and Naushad were unable to make repayment to Hakim. Hakim warned the two that he would not spare them. The Applicant claimed Hakim was a member of Parliament and the local leader of a political party called the All India Trinamool Congress (“TMC”). He befriended a high-rank official and was related to the police.
4. One day, some policemen arrested the Applicant and Naushad. They handed them to a group of people. Those people assaulted the two. The Applicant recognised there was a policeman who had been present when the loan document was signed. That policeman assaulted the Applicant. The group threatened to kill the Applicant and Naushad if they could not repay the loan. They tortured the two for two days. Then Hakim appeared. He asked the Applicant and Naushad to repay the loan or to help him in illegal activities. He threatened to kill them if they would not agree. The Applicant and Naushad were given two days to think over. They were then released.
5. Two days later, the Applicant and Naushad met Hakim. They agreed to work for him. Hakim warned that they could not leave his group later or disclose their activities to others.
6. Hakim gave the Applicant and Naushad nasty assignments including murders. The two later fled to another place.
7. Hakim sent people to harass the Applicant's family. Those people beat up the Applicant’s parents and vandalized the Applicant's house and shop. The Applicant's parents dared not report the matter to the police because Hakim was a powerful man and the police was under his control.
8. Nevertheless, the Applicant and Naushad made a complaint to the police. The duty officer, however, took them into custody and threatened to frame them up. They were beaten while in detention. Later, the police took the Applicant and Naushad to Hakim. Hakim asked them to finish an assigned job, which was to kill a woman for her property. Fearing Hakim would kill them, they agreed. However, they were not released immediately. Two days later, they were brought before Hakim again. This time, the two said they would not take up the assignment. Hakim then ordered his men to kill the Applicant and Naushad. The two were thrown into a river. Somehow, the Applicant was saved by fishermen but Naushad was nowhere to be found.
9. A fisherman took the Applicant to the police station. The police officer who heard the Applicant’s complaint reacted strangely. The Applicant sensed danger. He left the police station with the fisherman. Later, the police officer called them back. When they were returning to the police station, the Applicant saw Hakim’s men appearing. The Applicant then fled.
10. The Applicant learnt from his parents that Hakim’s men were searching for him. He decided to leave India.
11. On 3 April 2014, the Applicant left India for Hong Kong. He did not lodge a non-refoulement claim immediately. He overstayed and was arrested by the police two months later in June 2014. He then raised a non-refoulement claim.
12. The Applicant said Hakim definitely wanted to kill him. The India police were corrupt. They were under the influence of Hakim and would inform Hakim of his whereabouts. As such, state protection and internal relocation were not available to him.
13. 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].
14. On 25 January 2018, the Applicant applied for leave for judicial review.
Chronology of events
15. Things happened in this order: –
| 2014-4-4 |
The Applicant entered Hong Kong from India as visitor. |
| 2014-4-10 |
The Applicant began overstaying in Hong Kong. |
| 2014-6-24 |
The Applicant was arrested by the police. |
| 2014-6-26 |
The Applicant raised a non-refoulement claim. |
| 2016-2-19 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”] |
| 2017-6-2 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-16 |
The Applicant submitted a letter to the Director. |
| 2017-7-3 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: risk (BOR2 risk). [“the Director's further decision”] |
| 2017-10-19 |
The Applicant appeared before the Board for appeal. |
| 2018-1-19 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-1-25 |
The Applicant applied for leave for judicial review. |
Respondents
16. 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.
17. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
18. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
19. In the present case, the Director’s decision and further decision were more than three months old by the time the Applicant filed his current application on 25 January 2018. However, the Applicant should not seek judicial review against the Director’s decision and further decision before the Board rendered its appeal decision on 19 January 2018. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director’s decision and further decision on 25 January 2018; the application against the Board's decision was made in time.
Director of Immigration (the Director)
20. In the Director’s decision dated 19 February 2016, the immigration officer found there were unreasonable features in the Applicant’s allegations and there was no evidence to support his claim. Even on the Applicant’s own account of events, the officer assessed the level of risk of harm against the Applicant by his alleged enemies was low.
21. The Applicant accused some police officers were under the influence of the alleged enemies. The officer found he had exaggerated. In any event, there was no evidence that the Applicant was targeted by the India police as a whole or by the state. There was also no evidence the political party TMC was involved.
22. The officer was aware there were reports of police corruption and shortcomings in India. However, there was objective country-of-origin information (“COI”) showing ongoing reforms. The India government had taken steps to improve the situation. The officer found reasonable state protection was available to the Applicant. Internal relocation was also viable.
23. The officer did not accept the Applicant faced any torture risk, persecution risk and CIDTP risk (BOR3 risk). He refused the Applicant’s claim with respect to those three applicable grounds.
24. Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). The Applicant submitted a letter dated 16 June 2017 to the Director. He said his friends in India old him that Jahir (the business partner who had run away with most of the loan money) had been killed by Hakim in Mumbai in April 2017. The Applicant repeated his fear of being killed if he was refouled to India.
25. In the Director’s further decision dated 3 July 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under HKBOR 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).
TCAB/NCPO (the Board)
26. The Adjudicator found some the Applicant’s allegations plausible. He said he could not dismiss the Applicant's account of what happened before he left India as incredible. However, he considered there was no evidence to support the Applicant's later allegation (in his letter dated 16 June 2017 to the Director) about the killing of Jahir by Hakim in April 2017.
27. On the strength of what he considered the Applicant's claim as plausible, the Adjudicator accepted the Applicant faced torture risk, CIDTP (BOR3 risk) and life risk (BOR2 risk). He, however, considered there was no persecution risk because the Applicant's complained situation was not on account of any Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.[6]
28. Yet, the Adjudicator considered India was a vast country. There was no evidence Hakim could extend his influence over the whole country. The Applicant in his capacity could relocate himself to areas outside West Bengal (where Hakim was said to have influence). The Adjudicator concluded internal relocation was a viable option for the Applicant to escape from the torture risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk) he faced. Since internal relocation was available, the Adjudicator refused the Applicant’s non-refoulement claim.
Grounds for judicial review
29. In his affirmation, the Applicant complained the Director and the Adjudicator failed to consider properly the issues of extended state acquiescence and state protection; failed to conduct sufficient enquiry and critical analysis of relevant COI; failed to provide justification as to why certain COI was preferred to others; cherry- picked information; failed to consider the psychological harm he had suffered; took into account irrelevant facts.
Court hearing
30. The Applicant requested a hearing. The hearing took place on 19 June 2018. Hindi interpreter provided assistance in court.
31. The Applicant confirmed all the grounds of judicial review were in his affirmation. He did not elaborate any of those grounds. He merely said the Director and the Adjudicator did not understand his situation and that they should have investigated his case properly.
32. The Applicant confirmed he had submitted all information and materials to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. 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’.[7]
35. The Director and the Adjudicator had different findings. The Director did not find the Applicant faced any torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). The Adjudicator, on the other hand, accepted the Applicant faced torture risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk) but such risks would only exist in West Bengal, where Hakim was said to have influence.
36. Where the findings of the Director and the Adjudicator differed, the Adjudicator’s finding, which was more favourable to the Applicant, should supersede the Director's. However, the Adjudicator was satisfied that the Applicant could relocate himself to such areas outside West Bengal to avoid the risks posed by Hakim. He concluded the Applicant was still not entitled to non-refoulement protection. Such conclusion was not Wednesbury unreasonable.
37. Thus, both the Director and the Adjudicator by different routes concluded the Applicant was not entitled to non-refoulement protection.
38. The Applicant made a number of vague complaints against the Director and the Adjudicator. He did not give specifics even though he was invited to do so in court.
39. I have reviewed the Director’s decision and further decision under ‘rigorous examination and anxious scrutiny’. The Director committed no errors of law and there was no procedural unfairness. He had basis for his findings and conclusions, which were not Wednesbury unreasonable. However, where they differed from the Adjudicator’s, they must be superseded by the Adjudicator’s which were more in the Applicant’s favour.
40. I have also reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. His findings and conclusions were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness.
41. There is no substance in the Applicant's complaints against the Director or the Adjudicator.
42. Despite there were differences in their findings, both the Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. They had engaged in joint endeavour with the Applicant in the inquiry process. They had given the Applicant reasonable and sufficient opportunities to state and elaborate his case. They had considered the Applicant's claim carefully. They reached the same conclusion albeit by different routes. The same conclusion was that the Applicant was not entitled to non-refoulement protection. Such conclusion was not Wednesbury unreasonable.
Conclusion
43. The Applicant's complaints against the Director and the Board 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.
Dated 23rd day of August 2018
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(Alan Ngan)
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
Notes for the Applicant:
If leave has been granted, the Applicant or his 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 23/8/2018
Ahmed Wasi
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 23/8/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 3179/16/2/145/IN744
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2182/15 & RBCZ/9002142/17
(formerly RBCZ 2293/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] Order 53, rule 4 of the Rules of the High Court.
[6] The Adjudicator’s Report, paras 67-86.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
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