RE ALI ARSHAD

HCAL 7/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 7 OF 2015
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JUDGMENT
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1.  This is an application for leave to apply for judicial review against the following decisions :

(1) The decision of the Director of Immigration (hereinafter called the Director) made on 22 August 2014 rejecting the Applicant’s non-refoulement claim; and

(2) The decision of the Member of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (hereinafter called the Adjudicator) made on 8 January 2015 dismissing the Applicant’s Appeal / Petition.  

BACKGROUND

2.  The Applicant is an Indian national. 

3.  On 31 October 2008, he came to Hong Kong and was allowed, as on previous 5 occasions, to stay as a visitor.  He was permitted to stay until 14 November 2008.  He did not leave and had overstayed since 15 November 2008.

4.  On 17 November 2008, he was arrested for overstaying.

5.  On 19 November 2008, he raised his torture claim.  A few days later, he was released on recognizance.  On 10 March 2009, he was arrested and later convicted of the offence of Possession of a dangerous drug, for which he was sentenced to 4 months’ imprisonment suspended for 2 years.  

6.  His torture claim was considered by the Immigration Department under the unified screening mechanism (USM).  By a Notice of Decision dated 22 August 2014, the Director rejected the claim. 

7.  He appealed / petitioned against the decision.

8.  The appeal was heard on 11 December 2014 by the Adjudicator.  By the Decision dated 8 January 2015, the Adjudicator dismissed the appeal / petition and confirmed the decision of the Director.

BASIS OF THE NON-REFOULEMENT CLAIM

9.  In gist, with a desire to establish a business in mobile phones and accessories, the Applicant borrowed 300,000 Indian Rupees (“IR”) from a man called Mohammed Safiq (“MS”) who was at the material times the Secretary of the Communist Party of India (Marist) (“CPIM”) in Khidder Pur.   He, however, was not able to repay the loan as promised.  As a result, he was on two occasions assaulted by a group of people armed with weapons who came to demand repayment.  Despite his report of the second incident to the Police, no assistance was offered to him.

10.  The Applicant claimed that if he is returned to India, he will be located and killed by MS and his followers as he will be unable to repay the loan.

RELIEF SOUGHT

11.  The Applicant seeks the following relief :

(1) an Order of Certiorari to bring up and quash the said decision of the Director;

(2) an Order of Certiorari to bring up and quash the said decision of the Adjudicator;

(3) an oral hearing if leave is not granted on paper (and thus this hearing);

(4) such further or other remedy, relief or order as may be just and expedient in the circumstances.

GROUNDS OF REVIEW

12.  The Applicant was not represented.  In his affirmation, he put forward the following grounds of review :

(1) The Director and the Adjudicator failed to conduct sufficient country of origin enquiries, in particular the effectiveness of alternative means of redress in India against corruption;

(2) The decisions of the Director and the Adjudicator were irrational in particular that they erred in deciding that the injuries he suffered were minor;

(3) The Director and the Adjudicator erred in law as they failed to consider the concept of extended state acquiescence.

13.  At the hearing, the Applicant added that he has not been able to contact his family members by telephone call for 2 – 3 months despite he was able to do so before.  He has not sent a letter to his family but he will do so.  He said it is not safe for him to return to India before the matter is settled.  He needs time to settle the matter and as soon as it is settled he will go back to India.

DISCUSSION AND CONSIDERATION

14.  In his affirmation, the Applicant basically repeated in a brief manner his factual allegations which both the Director and the Adjudicator had been made aware of in greater details.

15.  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.[1]

16.  Judicial review is not a further or alternative appeal procedure.  As said by Lam J, as he then was, in TK v Director of Immigration[2], in the context of judicial review of a decision of an adjudicator, the crucial issues are :

(1) whether the adjudicator committed any error of law in his decision;

(2) whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3) whether the substantive decision satisfied the enhanced Wednesbury [3] test.

17.  The Applicant’s claim was considered under USM and his case was considered by the Director and the Adjudicator on all of the following applicable grounds :

(1) risk of torture under Part VIIC of the Immigration Ordinance[4];

(2) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance[5]; and

(3) risk of persecution, with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

18.  With the above in mind I consider the grounds of review.

Ground 1

19.  It was alleged that there was procedural irregularity as the Director and the Adjudicator failed to conduct sufficient country of origin enquiries, in particular the effectiveness of alternative means of redress in India against corruption.

20.  I do not agree.  As mentioned by the Adjudicator, the Director has quoted extensively materials stated in the Country of Origin Information (“COI”).  Both the Adjudicator and the Director have demonstrated that due consideration had been given to the materials.

21.  It was noted that corruption in the police force was at the time a major problem but there has also been ongoing reforms to address the situation which yield positive results.

22.  It was also noted that the CPIM is no longer the party in power in West Bengal.

23.  In relation to the allegation of non-action by the local police, it was observed that there were channels for the Applicant to make complaints and / or to seek assistance from the Police at higher levels but he did not do so.  The Adjudicator was of the view that there was no reason to believe that if the Appellant was to be returned to India he would not receive reasonable protection from the authorities against possible criminal actions by MS and his followers.

24.  In this application, the Applicant provided further information mainly in the form of press cutting.  The information does not advance his case.

25.  The Applicant failed to demonstrate that either the Director or the Adjudicator had not conducted sufficient country of origin enquiries.

Ground 2

26.  The degree of injuries which the Applicant suffered was considered mainly in the context of assessment of the risk of torture and CIDTP.  The Adjudicator endorsed the view of the Director who had assessed the nature and extent of injuries suffered by the Applicant.  The Adjudicator observed[6] :

“… I accept that the (Applicant) must have suffered a degree of pain and suffering when he was initially slapped on the face, and particularly when he was subsequently held and beaten for about 10 minutes with iron rods by 4 of MS’ men, which left him with a cut near his right eye which was sutured with 5 stitches, and also a crack in his jaw, which required a small operation to repair it. He only remained overnight in the hospital, then left the following day and travelled by bus for about 40 minutes to his Aunt’s house …”

27.  There were two incidents of assault.  The Applicant himself did not consider the first incident serious and had not even made a report.  The second incident did cause injuries to the Applicant.  I do not find the conclusion that the overall degree of pain and suffering which were inflicted upon the Applicant did not constitute intense physical or mental suffering and did not attain the minimum level of severity which is required to establish torture or CIDTP constitutes an error in law or is unreasonable.

Ground 3

28.  It was alleged that the Director and the Adjudicator erred in law as both of them failed to consider the concept of extended state acquiescence.  The Adjudicator expressly stated that he has considered the issue of state acquiescence and came to the view that there was no consent or acquiescence of any kind.[7] The Director stated that the availability of state protection further lowers or negates the level of risk.[8]

29.  The Adjudicator noted the reform to address the problem of corruption and the lack of attempt by the Applicant to seek assistance from higher level police officers.  He also noted the change of political environment as CPIM is no longer the governing political party.  

30.  Having regard to the observations in AM v Director of Immigration[9]and MI[10], I do not consider there is justification in making this allegation.

CONCLUSION

31.  In my judgment, the Applicant failed to demonstrate that any of his grounds of review is reasonably arguable with a realistic chance of success.  His application for leave to apply for judicial review is therefore refused.

[1] See Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, paragraphs 12 -16 of the judgment.

[2] HCAL 126/2010.

[3] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[4] Cap. 115, Laws of Hong Kong.

[5] Cap. 383, Laws of Hong Kong.

[6] Paragraph 46 in the Decision.

[7] Paragraph 24 in the Decision.

[8] Paragraph 14 in the Decision.

[9] [2014] 1HKC 416.

[10] CACV 69/2014.