JAMALUDDIN v. DIRECTOR OF IMMIGRATION

HCAL 104/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTTITUTIOAL AND ADMINISTRATIVE LAW LIST

NO 104 OF 2011

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REASONS FOR JUDGMENT

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Introduction

1.  This is the hearing of the applicant’s leave application for applying judicial review against the decision (“the Decision”) of Wesley Wong, Esq (“the Adjudicator”) dated 14 December 2011 in dismissing his appeal (by way of petition) against the Director of Immigration’s determination to refuse his torture claim.

2.  After hearing the parties on 29 February 2012, I dismissed the application with reasons to follow.  I now give them below.

Background and the procedural history

3.  The brief background relevant to this application is as follows.  Most of this is taken from the Decision based on the applicant’s case.

4.  The applicant is an Indian, born in 1984 in Kolkata, West Bengal, India.  He was in Hong Kong in 2005, and was arrested for and later convicted of obtaining property by deception.  He was fined by the court on 23 May 2005.  He then left Hong Kong on 28 March 2005.  He later attempted to visit Hong Kong in August 2005 but was refused entry.  He came again on 19 June 2007 and was allowed to remain until 22 June 2007.  He however overstayed and was arrested by police on 2 September 2007.

5.  On 18 September 2007, he lodged his torture claim (“the CAT claim”) under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

6.  It is the applicant’s allegations that he obtained a loan from three individuals in 2006 in order to set up his business. However, this sum of money was subsequently robbed from him when he was on his way to purchase goods for his business.  Given that he had lost his business, he had not been able to repay these three creditors.

7.  In support of the CAT claim, it is the applicant’s case (in gist) that these creditors belonged to the political party known as AFIB of CPM and they had connections with the local councillors and members of the Legislative Assembly.  They were supporters of COP which was influential in the whole area of Kolkata (his home town area).  He referred to a number of attacks and physical abuses on him and his father by these creditors and their people after he had not been able to repay the loan.  He said he did not report these attacks and abuses to the police as they (the police) would only listen to these creditors, presumably because of theses creditors’ said connections and influence.

8.  Thus, the applicant says he fears that he would be killed by these three creditors should he be sent back to India, as he could not repay the loan.

9.  By way of a Notice of Determination (“the Determination”) dated 11 November 2011, the CAT claim was dismissed by the Director.  The Applicant then appealed that Determination to the Adjudicator by way of petition.  By way of the Decision, the Adjudicator dismissed the appeal. 

10.  In the Decision, the Adjudicator in summary dismissed the petition on the following grounds:

(1)   On the evidence, he did not accept that the applicant had shown a genuine claim or that he had in fact been tortured which would fall within the meaning of Article 1 of the CAT.  See paras 10 and 11 of the Decision.

(2)   He was not satisfied that the applicant’s evidence showed any involvement of the Indian government, officials or political parties.  He was of the view that the dispute between the petitioner and his creditors was purely a private business dispute.  This thus took the applicant’s claim also outside the scope of CAT. See para 12 of the Decision.

(3)   In any event, there would not be any risk of torture if he was to be relocated to other parts of India away from his hometown Kolkata.  According to the evidence, the alleged influence of these creditors, if any, was at best localized to his hometown area Kolkata, and there was nothing to show that he would be subject to any risk of torture or that he would not be able to make a living elsewhere in India away from Kolkata.  I would for convenience call this the internal relocation ground.  See paras 13-15 of the Decision.

11.  On 22 December 2011, the applicant applied ex parte for leave to apply for judicial review against the Decision.  He, acting in person, however has not set out in his application and one-page supporting affirmation as to why the Decision should be quashed on any particular grounds.  He only repeats in his affirmation that he cannot go back to his country now as the three creditors are still looking for him, and would come to Hong Kong to find him to repay the money.  Other than the Decision, he has not exhibited any other materials in relation to the CAT claim and the petition.

12.  I therefore directed that the leave application be dealt with at a hearing.  I further directed that the Director of Immigration (“the Director”) as the putative respondent/interested party to attend the meeting and make submissions in this leave application.  In particular, the court asked the Director to provide evidence as to whether the Director and the Adjudicator, in processing the applicant’s CAT claim, had inquired into and obtained relevant materials on the relevant conditions of the receiving country in light of the judgment in TK v Michael C Jenkins, Esq and the Director of Immigration (unrep, HCAL 126/2010, Lam J, 21 October 2011) at paras 31-33, following Secretary for Security v Prabakar (2004) 7 HKCFAR 187, at paras 54-55 per CJ Li.

13.  The Director has since filed two affirmations effectively to oppose the leave application.  One of these affirmations was made by Mr Ng, who was the handling officer of the Immigration Department of the applicant’s CAT claim.  Mr Ng has also exhibited the materials in relation to this CAT claim, including the Determination.

14.  The parties first came before this court on 20 January 2012, which was a Friday.  For the purpose of the hearing, Ms Leona Cheung for the Director has filed a skeleton submission dated 19 January 2012 opposing the leave application.

15.  At that hearing, the applicant told the court that he had approached a solicitor before the hearing for the purpose of obtaining legal advice and the possibility of retaining his service.  However, as the solicitor was too busy, the solicitor had arranged to see him in the then coming weekend.  The applicant therefore asked for time for him to prepare for this application and for obtaining legal advice.

16.  Given the intervening Chinese New Year holidays and the court’s diary, the court thereby adjourned the hearing to 27 February 2012.

17.  On 27 February 2012, the applicant did not turn up, as he had been arrested and detained by the police for theft.  With the assistance of the Immigration Department’s inquiry made during that hearing, the court was informed the location of the detention centre where the applicant had been detained.  The court therefore further adjourned the hearing to 29 February to enable it to issue a body order to secure the attendance of the applicant at this hearing.

18.  When the applicant appeared in court on 29 February, he first asked for a further adjournment as he said he wanted to have more time to consult lawyers.  He also said as the previous lawyer’s suggested charge was too high, he could not afford that lawyer.  I refused to adjourn the hearing further, as in my view, the applicant has had sufficient time to seek legal advice if he genuinely wanted to have one or if he could realistically afford one.

Discussion

19.  For the purpose of determining whether leave should be granted to apply for judicial review, the applicant must show that his grounds of judicial review are reasonably arguable with a realistic chance of success:  Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 685A‑686B para 12-16, per Li CJ.

20.  When the applicant was asked by this court at the hearing as to on what bases he said the Decision should be quashed under the intended judicial review, he only repeatedly said that if he was to be sent back to India, he and his family would be at great risk of physical abuse and of being killed.  He further said that he understood that a few days ago, some people went to his home in India and beat up his father.  He also told this court that he received a call from India on 3 or 4 February, telling him that the creditors had threatened his family again, and that if he did not repay the loan, they would kill him and his family members.  He emphasized however that had this loan problem been solved, he would immediately go back to India.

21.  In effect, other than repeating his allegations of risks of being harmed by the creditors if he was to be sent back to India, the applicant has not provided any grounds recognized in public law in support of the intended judicial review to say why the Decision should be quashed.

22.  It is trite that the court in judicial review is only to look at the legality of the underlying decision but not its merits. Judicial review is also not a further or alternative appeal procedure.  As said by Lam J in TK v Director of Immigration, supra, at para 87, in the context of judicial review of a decision of an adjudicator, the crucial issues are: (a) whether the adjudicator committed any error of law in his interpretation of CAT or in any part of this decision; (b) whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and (c) whether the substantive decision satisfied the enhanced Wednesbury test.

23.  Given that the applicant has not provided any such recognized grounds of judicial review against the Decision, on this basis alone, the leave application should be refused.

24.  Further, and in any event, given that the Adjudicator has upheld the Determination on the alternative basis of internal relocation, even if there are any bases to suggest that the first and second reasons of the Decision (as summarized above) are reviewable under any of these public law grounds, if the internal relocation ground cannot be so challenged, the intended judicial review would not succeed. Cf  TK v Director of Immigration, supra, at para 97.

25.  It was on this ground that I have asked the Director to provide me with the evidence that he had discharged the duty (“the Duty”) of understanding the receiving country’s conditions at the time of the alleged torture in the past as well as at the present, which is usually relevant to the assessment of the CAT claim: Probakar, supra, para 55; TK, supra, paras 31-33.  This is to satisfy me that the Adjudicator had duly taken into account these materials on the conditions of the receiving country, if available, in determining the appeal under the petition, and in concluding the ground of internal relocation.  Cf TK v Director of Immingration, supra, para 33.

26.  The Director has now provided me with this evidence under paras 23-25 of Mr Ng’s Affirmation.  It included the Constitution of India offering protection of fundamental human rights to, and providing equality and protection of life and personal liberty of, her citizens.

27.  More relevant to this application is that, the Director had also looked into the relevant section of the Code of Criminal Procedure in India, which provided that if the police in one’s locality have refused to register what is called the first information report (FIR) sought to be filed by an individual regarding human rights abuse, he could approach the nearest magistrate for relief.  This was obtained by Mr Ng from “Chapter 12 of Code of Criminal Procedure regarding the information to the Police and their powers to investigate”.  Mr Ng further summarizes this aspect of the protection at para 24 of his affirmation as follows:

“If the police refuse to register for an FIR, according to section 154(3) of the Code of Criminal Procedure, one can send a complaint to the senior officer and to the District Superintendant (‘the DSP’). The DSP will order the registration of an FIR. Alternatively, or if the FIR is still not registered, one can approach the nearest magistrate. When the magistrate directs the police to register a case and investigate it under section 156(3) of the same Code, the complaint is transformed into an FIR. Even if the direction made by the magistrate does not ask the police to register the case, but only to investigate it, the police have a duty to treat the direction as an FIR. There is no evidence that the Indian authority would fail to discharge its duties or tolerate any unlawful and abusive behaviour committed by an individual as a systemic practice.”

28.  The summaries of all these materials have been set out in the Determination and copies of the supporting materials were attached to it.  They were also all provided to the Adjudicator for the purpose of hearing the petition.  The Adjudicator thus had the benefit of these information and materials.

29.  In the circumstances, I am satisfied that there is nothing before me that could arguably suggest that the internal relocation ground in the Decision is challengeable under the intended judicial review:

(1)   The Director had discharged in the present case the Duty by obtaining the necessary information and materials on the receiving country’s conditions.  The learned Adjudicator had had the benefit of this in determining the petition.

(2)   Given this information and materials, as well as the fact that even on the applicant’s own case, the alleged collusion was (a) between the creditors and the police but not the judiciary, and (b) in any event confined to only his hometown Kolkata, it is not even arguable that the Adjudicator’s conclusion on internal relocation has committed any error or law or that it was Wednesbury unreasonable in the sense that no reasonable adjudicators would have come to the same conclusion as the Adjudicator.

30.  In the premises, the internal relocation ground in the Decision is unchallengeable, and on this basis also, this leave application cannot succeed.

Conclusion

31.  For the above reasons, the application for leave is refused.  The Director has not (I think rightly so) asked for costs in the circumstances of the present case.  I therefore further make no order as to costs for this application.