MD KALAM v. MR WILLIAM LAM, ESQ

HCAL 54/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 54 OF 2017

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J U D G M E N T

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1.  The applicant was arrested on 1 December 2013. He had overstayed his expired tourist visa by three weeks. The applicant has entered Hong Kong twice. He first entered Hong Kong on 14 September 2013 via the local border. He stayed in the territory for one week before leaving for home, India on 21 September 2013. He came again entering Hong Kong about one month later on 24 October 2013 and this time overstayed his tourist visa.

2.  The applicant lodged a non‑refoulement claim on all available grounds on 3 December 2013 and it was dismissed by the Director of Immigration (“the Director”) on 25 November 2015 and 28 October 2016 respectively.  The latter decision being a consideration of the BOR 2 risk.  The applicant filed an appeal/petition to the TCAB which, after a hearing, was dismissed on 9 February 2017.  He then filed an application for leave for judicial review on the 27 February 2017.  The court fixed a hearing date for 19 July 2017.  The Director is named as an interested party and the adjudicator of the TCAB is the putative respondent.

3.  The basis of the applicant’s claim was that he believed his life was in danger from his girlfriend’s father; a politically powerful and influential man in India who disapproved of their relationship. He feared he would be harmed by this man if he was to return to India.

4.  The applicant applied for legal aid to apply for leave to judicial review which was refused on 10 May 2017.  The applicant has appealed that decision and it is set down to be heard on 1 September 2017.  The applicant requested an adjournment of this hearing to await that decision.  I refused to adjourn the hearing date.  In my view, on the papers, the merits of this application are lacking and there is no reasonable arguable claim with a realistic prospect of success.  That opinion was confirmed having heard the applicant in person.  I saw no reason to delay this matter any further to await the result of that appeal against the Director of Legal Aid.

Background

5.  The applicant was born on 26 October 1977 in India.  He did not receive any formal education but was a skilled embroidery manufacturing worker from 2004 to 2011 and his income was between 1000 and 1500 Indian rupees a week.  He lived with his mother in his home village in Kolkata.

6.  The applicant met a girl called Sita on 14 February 2010 when he was 33 years old and it was love at first sight.  They began to date.  Some six to seven months later, he, a Muslim, found out that Sita was a Hindu.  The applicant said such a relationship is impossible and incompatible but they were reluctant to part.  They dated secretly until August 2011.  At about that time Sita’s father, Mr Ganesh, found out about their relationship; he was most unhappy and disapproved.

7.  Mr Ganesh was a powerful political figure, a member of the “All India Trinamool Congress” party (“AITC”).  The applicant did not know what his position was in this party nor his profession but said he was politically powerful and influential.

8.  Once their relationship was uncovered the applicant was told by Sita that she could not see him as her father was very angry they were dating.  Not long after he received this message from Sita the applicant was beaten up by five to six men who attacked him on the street brandishing hockey sticks. This was without warning or provocation.  The attack lasted about 10 minutes.  He sustained injuries to his head and body and went to a pharmacist nearby.  He got painkillers and some ointment for his injuries and then went home.  The applicant said it took him 15 to 20 days to recover from these injuries.  He didn’t report this incident to anyone in authority because he did not know who had attacked him.

9.  Three to four days after this attack the applicant called Sita insisting she meet him.  She told him she wanted to terminate their relationship.  She agreed to meet him one last time.  She saw his bandaged head and told him she was sure it was her father who had sent men to attack him.  The applicant then decided he had to confront Sita’s father, Mr Ganesh.

10.  Five to six days after this meeting the applicant waited near Sita’s home for Mr Ganesh to return to speak to him.  When Mr Ganesh saw the applicant he was very hostile and threatening; he threatened the applicant’s life.  The applicant quickly left.

11.  The following day the applicant reported the attack to a police officer at a nearby police station.  He wrote down his complaint and named Mr Ganesh.  One week later the applicant returned to the police station to follow up on the investigation and was told Mr Ganesh had filed a complaint against him; a Muslim was dating his Hindu daughter.  The police officer said Mr Ganesh ordered him to detain the applicant if he appeared but that police officer gave the applicant the chance to run away from the station.

12.  Sita told the applicant her father was furious and would have him arrested if he appeared.  The applicant was so scared he went to Mumbai to hide.  However, about five days later he saw on the streets of Mumbai the same five to six men who had attacked him.  They confronted him again but he ran away.  He then went to Kulgashi by train to stay with his aunt before leaving for Hong Kong for the first time.

13.  Whilst in Kulgashi, Sita told the applicant over the phone not to come home as her father would kill him and she was ending their relationship.  His family told him over the phone that Mr Ganesh had threatened them on several occasions since he had left.  They said he threatened to kill the applicant if he saw him again or if he contacted Sita again.

14.  A friend told the applicant Hong Kong was the safest place in the world to lodge a refugee claim.  Whilst considering this option another friend offered to take him to China as he was going and would pay for all his expenses.  This was his first trip to Hong Kong coming from China via the Lo Wu border immigration checkpoint on 14 September 2013. After he returned to India a week later he then decided he would return to Hong Kong to make a non‑refoulement claim for his own protection and safety.  He said even now despite having been away for several years his family told him Mr Ganesh was still looking for the applicant.

15.  The applicant did not feel safe anywhere in India and did not consider internal relocation possible because Mr Ganesh was a powerful and influential man in a political party that had offices all over India.  He was not confident the authorities in India would protect him. He felt they would, on the contrary, act according to Mr Ganesh’s instructions meaning he would be at risk and in danger anywhere in India.

The Director of Immigration’s decision

16.  The Director concluded after a hearing where the applicant was legally represented that the risk of harm to the applicant if he returned to India was assessed as low.  The claim of fear was far-fetched.  The nature of the dispute between Mr Ganesh and his men, if it were his men that attacked the applicant, was a private matter and dispute.  There was no evidence AITC or any proponents of Hinduism were involved in the attack or subsequent threats made.  There was also no evidence they or the State made the applicant a target.

17.  The Director found the availability of State protection existed and lowered the risk of harm even further or in fact negated it.  The applicant was able to travel in and out of India without incident and therefore not a target of the State.  The Director assessed the relevant up‑to‑date COI material objectively and thoroughly including that relating to the status of the two religions here and inter-religious marriages in India.

18.  As far as the BOR 3 risk was concerned, even if the attack did take place as claimed it did not reach the threshold of a “minimum level of severity” to constitute a BOR 3 risk.  The only physical attack described by the applicant was in 2011.  The likelihood he faced a genuine and substantial risk of being subject to ill‑treatment if he returned to India was assessed to be unlikely.

19.  Likewise, the risk of persecution was not substantiated.  This private and personal dispute had nothing to do with nor was close to the definition of persecution.  On the contrary, nothing showed the Government was unwilling to protect the applicant.  Even if the perceived risk of harm existed the risk is only localised.  Internal relocation in other parts of India other than his home village was viable without undue hardship.

20.  The Torture risk as defined by section 37U(1) of the Immigration Ordinance Cap 115 was assessed and found unlikely to materialise.  Since the Director found the risk of harm to be low there were no substantial grounds to believe the applicant would be subject to torture if refouled.

21.  At a later date, the Director also considered the BOR 2 risk.  There were no substantial grounds for believing the applicant would face a real risk of being subject to treatment contrary to Article 2 if refouled.

Decision of the TCAB Adjudicator

22.  The applicant’s complaints against the adjudicator are set out in the supporting affidavit; namely there were procedural impropriety, unfairness, irrationality in decisions made and in the process of that decision making.

23.  During the hearing of the appeal/petition, the applicant elected not to give evidence and answer any questions from the adjudicator.

24.  From the papers the adjudicator plainly analysed the applicant’s claim with conscious regard to the following;

(1) Art 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) and Art 7, International Covenant on Civil and Political Rights (“ICCPR”) (BOR 3 risk/cruel and inhumane treatment claim);

(2) Art 2 of s8 of the Hong Kong Bill of Rights Ordinance (right to life claim);

(3) the 1951 Convention relating to the status of refugees, article 33 and its 1967 protocol (persecution risk);

(4) the risk of torture under Articles 1 and 3 of the Convention against torture and other cruel, inhumane or degrading treatment or punishment (torture claim).

25.  The adjudicator considered the claims afresh as a rehearing but without the benefit of any answers to questions he may have had of the applicant.  There were issues that affected the credibility of the applicant in the opinion of the adjudicator which were left unexplained. Ultimately he made no finding as to the credibility of the applicant.

26.  He came to the same conclusions and findings as the Director.

Judicial review

27.  The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success.

28.  The legal principles for judicial review are worth repeating. The court plays a supervisory role and will consider several crucial issues:

(a) were there any errors of law;

(b) did the procedures adopted at the hearing the petition/appeal satisfy the high standard of fairness required; and

(c) did the substantive decision satisfy the enhanced Wednesbury test.

29.  The standard of review is that of “rigourous examination and anxious scrutiny” to ensure that the required high standards of high fairness have been met.  (See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 45)

30.  This court set down a date for an oral hearing as requested.  The applicant’s Form 86 sets out for grounds on which relief is sought; namely there were errors of law, procedural unfairness, failure to apply the proper standard of proof and the decision was Wednesbury unreasonable.

31.  However, what is in the supporting affirmation does not cover all the grounds set out.  What the applicant complains of is that the TCAB board did not give him sufficient time to prepare for his hearing because the bundle was only served on him several days before the hearing date.  He complains no one was arranged to translate the bundle to him prior to either hearing.  At the hearing, the applicant was explained his rights and provided with an interpreter.  There was no complaint and no indication from the applicant he was confused in terms of what was happening during the hearing, he was ill‑prepared or needed help nor did he object to the COI material.  There is no record of any complaint from the applicant.  He clearly understood the procedure explained to him.  There is no substance in this ground.

32.  He added before me that the duty lawyer acting for him in front of the Director did not perform well because the applicant “felt” he did not present the applicant’s case properly.  There was no complaint of this before the adjudicator.

33.  The applicant, in his supporting affirmation, claims he answered all the questions of the adjudicator honestly and “it aggravates him that his credibility was found questionable”.  This is very misleading; he neither elected to give evidence and answer questions nor did the adjudicator make a finding on credibility.

34.  The applicant submitted before this court that he wanted leave because he needed more time in Hong Kong.  He explained he was receiving medical treatment here and wanted to complete it.  This is not a reason to allow this application.

35.  He claimed the Immigration Department did not screen or make a decision on his Art 2 BOR claim therefore making a procedural error.  He submits as it was not decided upon the adjudicator could not rehear this claim. In the papers, the adjudicator specifically refers to the Director’s decision to dismiss the BOR 2 risk.  The applicant was sent a Notice of Further Decision dated 28^th of October 2016 informing him of the Director’s decision on that claim.  The Director would have canvassed the applicant’s further submissions prior to that decision. Here, that claim also failed.

36.  The adjudicator considered the COI material and the evidence of the applicant’s claim submitted.  He independently assessed the claims and found them unsubstantiated.  Also, the legal elements of the definition of torture were not established.  The same applied to the BOR 3 risk claim, the applicant’s situation, past and in the future, falls short of establishing CIDTP hence BOR 3 risk claim failed.  The adjudicator found no substantial risk to the applicant’s life, therefore the BOR2 risk also failed.

37.  In addition, his claim and evidence fell short of establishing a serious violation of human rights or serious or intolerable harm.  He faced no persecution risk in the future if he returned to India.

38.  I find the adjudicator’s decision far from faulty.  He clearly analysed the claims carefully and applied the correct standard of proof.  I find the decisions of both the Director and the adjudicator legal, rational (not Wednesbury irrational) and made without procedural impropriety.

39.  I am not satisfied the application is reasonably arguable with a realistic prospect of success; therefore, leave to apply for judicial review is refused.