MANNAN ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 472/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 472 OF 2017

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J U D G M E N T

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1.  The applicant is an Indian national who arrived in Hong Kong on 18 December 2013 and was permitted to remain until 1 January 2014. The applicant overstayed in Hong Kong and surrendered to the Immigration Department on 4 February 2014. He lodged a non-refoulement protection claim on 4 March 2014. The Director of Immigration (“the Director”) rejected the claim on 9 March 2016 and 14 March 2017. The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which held an oral hearing on 12 April 2017. The adjudicator of the TCAB rejected the applicant’s appeal/petition on 21 July 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 1 August 2017 and in his supporting affirmation requested an oral hearing which was set down for 21 November 2017. The applicant appeared in person having had his application for legal aid refused on 27 October 2017.

Background

3.  The basis of the applicant’s claim was that if he were to return to India he would be killed by three wealthy, powerful and influential brothers surnamed Molla (“the brothers”) because he had failed to repay a loan of Rs.2.5 million he had borrowed from them. Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore I only intend to summarise it here.

4.  The applicant was born in 1978, is married with three children and in 2011 to 2013 owned a mobile phone and phone accessory shop as well as a garment business in Kolkata, India. The garment business went well initially but the applicant ran into cash flow issues in early 2013. In May 2013, the three brothers offered to lend the applicant money so he borrowed Rs.2.5 million. There was no loan agreement signed, no time frame set for repayment, no witness or guarantor to the loan nor any interest payable. One brother said the applicant had to give them a share of his profits without mentioning specifics or percentages.

5.  From May to November 2013 the applicant made at least three trips to Hong Kong buying stock but made little profit. The garment business suffered a loss due to his bad debtors. In November 2013, the applicant went again to Hong Kong to buy mobile phones but had them confiscated at Hong Kong airport because of their batteries. He could only redeem them when he next returned to Hong Kong. The applicant was only able to repay the brothers Rs. 450,000 in December 2013 which they told him they treated as profit and not repayment of the principal loan. They then demanded he repay the 2.5 million loan in full. However, they would not let him return to Hong Kong to sell his goods stuck at Hong Kong Airport.

6.  Four days after this demand, they called him to their offices where he was then punched and kicked all over by the brothers for about 10 minutes. Even though he managed to escape to the outside of their offices during the assault no pedestrians dared to intervene because they were afraid of these notorious men. The applicant was bruised but did not require hospital treatment. He did not report this to the police as he believed it would be futile because the brothers were powerful, wealthy and the police open to bribery. The applicant was worried the police would only falsely accuse him of crimes.

7.  The applicant felt he had no choice but to leave India so he secretly arranged a ticket and left home without luggage in case he was seen by the brothers before flying out on 17 December 2013. The applicant’s wife told him that the brothers came to their home almost daily asking for repayment of their money and threatening to kill him when he returned.  Eventually the applicant’s wife took their children to live with her parents about two hours away. The applicant believes it would be impossible to relocate to other parts of India because the brothers would be able to find him through their connections as they have family in political parties who would help them locate him.

8.  Before he came back to Hong Kong he had ask a friend here to redeem his goods from the airport and sell them in Hong Kong so that the applicant could repay the brothers with that money. However, that friend cheated him by taking those goods and disappearing. To date, the applicant has been unable to locate him.

9.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds:

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (torture risk);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (BOR 3 risk);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A (2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (persecution risk); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (BOR 2 risk).

10.  According to the Form 86 filed by the applicant, he does propose to challenge both the decision of the Director and the TCAB.  However, there are no grounds for leave to judicial review the decision of the Director. Quite properly the applicant has utilised the channel of appeal; appealing to the TCAB. The TCAB appeal/petition takes the form of a rehearing, a de novo hearing; therefore, all flaws or errors allegedly made by the Director would and should have been addressed and corrected by the TCAB. I see it necessary in this case to consider leave to judicial review the TCAB decision only.

The TCAB adjudicator’s decision

11.  The adjudicator treated the appeal/petition as a rehearing and conducted an oral hearing where the applicant elected not to answer questions. In his decision the adjudicator set out the law and key legal principles he relied on in assessing the applicant’s claim under the four applicable grounds.

12.  This adjudicator made comments relating to the applicant’s credibility but did not make any findings as to credibility. He proceeded to apply the facts of the claim as if they did happen to the applicant to all four applicable grounds. For the torture risk, he considered the definition of torture as defined in the Immigration Ordinance. He concluded the facts of the applicant’s case could not be said to raise substantial grounds for the applicant believing he faced a real, personal and present risk of being subjected to torture if he returned to India. His torture risk claim failed.

13.  The adjudicator also considered what was required to invoke the protection of risk of torture or CIDTP under BOR 3 and found on the applicant’s own evidence, he had failed to establish that the ill-treatment he would face if refouled attains a minimum level of severity and he had a genuine and substantial risk of being subjected to such ill-treatment. The BOR 3 risk claim failed. The adjudicator found on the facts and his findings there was no substantial risk to the applicant’s life and the BOR 2 risk claim failed.

14.  Lastly, for several reasons, the adjudicator found the applicant could not establish there was a real risk of persecution if refouled including his fear did not arise from any Refugee Convention reason. His fear did not arise from being attacked or threatened on account of race, religion, nationality, membership of a particular social group or political opinion.  His fear arose from being threatened or harmed because he had failed to repay his creditors; it was a private personal financial matter. His persecution risk claim failed.

15.  I have found it unnecessary to go into great detail of the adjudicator’s decision-making process for two reasons. The applicant’s grounds do not require it and his submissions in the oral hearing before me essentially determine the outcome of this application.

Leave to apply for judicial review

16.  The supporting affirmation lists the following as grounds for seeking leave;

(1)   lack of legal representation before TCAB/miscarriage of justice;

(2)   lack of language assistance/unfairness and potential injustice;

(3)   inability to read Immigration Dept. correspondence/unfairness; and

(4)   absence of Immigration officer at appeal/an irregularity.

17.  At the oral hearing requested by the applicant, I began by summarising the four grounds from his affirmation for him. For the first ground, the duty lawyer scheme will automatically represent all applicants in their claims before the Director and that will include assisting them to fill in all the necessary forms and questionnaires. After that, the duty lawyer scheme will represent applicants in their appeals only if they are of the view there is merit in their cases. This is not automatic and their assessment is on a case by case basis. The applicant agreed that he did approach the duty lawyer scheme after the Director rejected his claim but they refused to continue to represent him in his appeal because they were of the view there was no merit in his appeal.

18.  For the second ground, the applicant was at first cagey when answering my questions and then admitted he did not write this affirmation.  He had not requested a translation of his non-refoulement claim form from the duty lawyer scheme as stated in ground 2. There is certainly no merit in this ground.

19.  The third ground states clearly the applicant replied to the Immigration Department letter relating to the BOR 2 without knowing it was an invitation to submit additional facts. It is a complaint the letter was highly technical, in English and hard for the applicant to understand. However, during the oral hearing he said he knew the letter related to the BOR 2 because someone translated it to him and he admitted he knew the letter was inviting him to submit documents. He had no documents to submit anyway.  There is no merit in this ground.

20.  The fourth ground alleges it was unfair there was no Immigration officer attending the oral appeal hearing. The applicant was not told why he was excused which is the norm; submissions are filed in the appeal bundle and his attendance excused. The applicant’s oral submission was that this fourth ground was far-fetched and not submitted with his consent in the affirmation.

21.  This answer led to a number of questions from the court as only five days previously had the applicant in HCAL 452/2017 with an almost identical affirmation (minus the fourth ground) admitted paying an interpreter who assists in the Immigration Department Kowloon Bay office for the affirmation. This applicant also agreed that an interpreter prepared it, adding he spoke Urdu. This applicant also agreed to my question that people had told him the interpreter was also a lawyer. He agreed that he had an office in Tsim Sha Tsui. This was all information told to me by the applicant of HCAL 452/2017 and now reaffirmed by this applicant. But this applicant said he never met him in his office, only out on the road in that area. That man he called Mr Kashif accompanied him to the High Court to file this application and he drafted this affirmation. This applicant says he did not pay him but he did it as a favour.

22.  This applicant produced this man’s name card for the court and a copy was made. He explained that in fact he had met him much earlier on, it seems he meant before his appeal before the TCAB. A Chinese woman he referred to as a “member of staff” in the Immigration Department Kowloon Bay office took him to an office in the same building to meet this man who introduced himself and said he could speak the applicant’s language and could help him with his claim. However, the applicant also said, rather vaguely, someone had told him about this man who could help so he contacted him by phone and he helped him for free.

23.  What is important is that both applicants in two separate applications have referred to an interpreter who helps in the Immigration Department’s Kowloon Bay office who purports to have legal knowledge or claims to be a lawyer and has at least on one occasion charged an applicant for preparing an affirmation.  However, these are only two almost identical affirmations, I have already dealt with many and am sure will deal with many more to come.

24.  Lastly, this applicant submitted the sole purpose and intention for making this application for leave was to buy time; to prolong his time here in Hong Kong.  He has used and abused the judicial system. He said he is in touch with his family who tell him there will be a solution to his problems in India in three to four months’ time which is why the applicant made this application for leave to apply for judicial review.

Conclusion

25.  On that last submission alone the applicant fails to demonstrate any reasonably arguable ground and the application for leave to apply for judicial review is refused. He admits he is using the courts and using this application to buy time; it is disingenuous and abusive.

26.  Even without that last admission there were no reasonably arguable grounds. During the oral hearing, the applicant admitted there was no truth to grounds 2 and 3. Ground 4 he called far‑fetched. As for ground 1, the failure of the duty lawyer scheme to find merit in his appeal cannot be defined as a miscarriage of justice and the fact the applicant was unrepresented in his appeal has not shown to be procedurally unfair.

27.  I do not find any ground that shows there was an error of law by the adjudicator either. Nor do I see any other evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. There would have been no realistic prospect of success in this application.