RE MOHAMMAD MOINUDDIN

HCAL 163/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 163 OF 2016

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review against a decision rejecting the Applicant’s torture claim.

Background

2.  The Applicant was born on 21 November 1991 and is a native of India.

3.  On 10 December 2013, he arrived in Hong Kong and was permitted to remain as a visitor until 13 December 2013.  He overstayed in Hong Kong from 14 December and on 22 January 2014 he surrendered to police as an overstayer.  A removal order was issued against and served on the Applicant on 12 March 2014.  He was released on recognizance on 18 March 2014.  On 24 January 2014, the Applicant filed a torture claim under Part VIIC of the Immigration Ordinance, Cap 115.  The basis of claim was that he would be subjected to torture in India if he was returned there.  The claim for non-refoulement was considered and rejected by the Director of Immigration (“the Director”) on 29 September 2015.  The Applicant appealed and petitioned against the decision, but the Member of the Torture Claims Appeal Board and Adjudicator of the Non-refoulement Claims Petition Office, Ms Beeson Clare Marie (“the Adjudicator”), rejected the appeal and the petition on 12 August 2016.  It is against such decision of the Adjudicator (“the Decision”) that the Applicant now seeks to apply for leave to commence judicial review proceedings.

4.  The Applicant is not legally represented in this application.  The main ground put forward to challenge the Decision is that the Adjudicator failed to conduct an oral hearing to hear his appeal and petition.  There is also a complaint that the Adjudicator had failed to conduct an inquiry into the conditions of the Country of Origin and consider properly the materials in the Country of Information reports (“the COI Reports”).  Finally, he alleges that the Adjudicator had failed to consider the impact of the treatments he received in India.

Legal principles on oral hearings

5.  It is common ground that there is no absolute right to an oral hearing.  Whether there should be one depends on factors including:

(i) The standard of fairness required,

(ii) The nature of the decision making process,

(iii) The procedural history of the matter.  Whether there had been an oral hearing before,

(iv) The interest at stake,

(v) The issues involved, and

(vi) The possible effect of the oral hearing.[1]

6.  In ST v Betty Kwan[2], Cheung CJHC stressed that, in torture claim cases, as life and limb were usually at stake, a high standard of fairness must be observed.  Given the inherent limitation of written submissions, high standard of fairness would require the holding of an oral hearing even when there was no factual dispute. 

6.   Cheung CJHC stressed that an adjudicator should point out to an applicant matters which call for clarification.  His Lordship accepted that there might not be a duty of inquiry provided that an applicant was aware of his or her burden to prove the issues.  His Lordship stressed that it was important to let the applicant participate in such decision which might be of serious implication to him or her.  In fact, in Australia, New Zealand and England, oral hearing is the norm. 

7.  To understand how the above principles were applied in ST, it is essential to set out the basic facts in that case. The petitioner was an ethnic Tamil from the north of Sri Lanka.  His whole family had links to the Liberation Tigers of Tamil Eelam (‘LTTE’) which was at war with the Sri Lankan government. His father worked for the LTTE.  His brothers joined the LTTE.  One of his brothers died fighting for the LTTE.  Being an ethnic Tamil, he was often ill-treated by the Sri Lankan Army and Police.  On the other hand, he feared conscription by the LTTE.  He thus left Sri Lanka for Hong Kong in January 2003.  The basis of his petition was that he feared ill-treatment by the Sri Lankan authorities as he was an ethnic Tamil and had participated in anti‑government activities. 

8.  Cheung CJHC ruled that the adjudicator in ST should have held an oral hearing for the following main reasons:

(i) The adjudicator relied heavily on two important decisions from the UK Asylum and Immigration Tribunal (“AIT”).

a The case of LP which considered the situation during the civil war in Sri Lanka when there was serious security problems.  The AIT set out factors for assessing the risk of torture when failed refugee and torture Tamil claimants were repatriated to Sri Lanka.[3] 

b The case of TK was decided after the civil war ended.  In TK, the AIT reviewed the guidance given in LP.  The AIT also considered the significance of the new computerised system for checking the background of ethnic Tamils when they were repatriated to Sri Lanka at the Colombo airport.  The question for the AIT was whether there was real risk of adverse treatment of ethnic Tamils since LP.[4] 

(ii) These decisions set out a principled approach, based on expert evidence, towards assessing the relevant personal risk to the torture claimant if returned to Sri Lanka.

(iii) These two cases are “country guidance” cases, for deciding similar cases involving asylum seekers and torture claimants from Sri Lanka.

(iv) The adjudicator should have drawn the applicant’s attention to these cases given the high standard of fairness required in this kind of cases.

(v) This was especially so when the applicant had not adopted the AIT approach in his petition albeit he was represented. 

9.  In my view, the ultimate question is whether fairness requires the holding of an oral hearing in the light of the facts and the interest at stake.  This is particularly so when there is some dispute of the facts in an important aspect or that the adjudicator could not independently assess the risk asserted.  An adjudicator should not refuse an oral hearing to save time and expense.[5]

The Decision of the Adjudicator

10.  The Applicant engaged in the business of trading of mobile telephones and accessories.  As one of his old clients had failed to make payment for the supply of a lot of goods, he encountered financial difficulty and his suppliers pressed him for payment.

11.  The Applicant claims that he had been assaulted two to three times by his suppliers and their associates. According to him, the suppliers were associated with a senior member and minister of All India Trinamool Congress (“TMC”) and also assistant to the Chief Minister of West Bengal, Manata Banerjee.  The Applicant dared not complain because of such political affiliations.

12.  His father and his uncle raised some money to enable the Applicant to come to Hong Kong to buy goods to sell in India with a view to make some money to repay the debt.  When he was in Hong Kong, his father warned him not to return to India because the suppliers were causing disturbances at his home and threatened to kill the Applicant.

13.  The Applicant confirmed that apart from his failure to repay the debt, the suppliers had no other reasons for harming or killing him.  The Applicant’s family is now raising money to repay the debt.

14.  According to the Applicant, he cannot go back and relocate to live in other parts of India because of the widespread political influence of TMC.  He did not seek assistance of the police or other government authorities because he had no connections with the police, and neither did he have any money to pay bribes to them.

15.  The Adjudicator proceeded on the basis that the Applicant’s evidence about facts and events is the truth.  However, she found that the Applicant’s worries are wholly speculative.  The dispute the Applicant describes is related solely to the large unpaid debt which the Applicant admits he owes to his suppliers.  No state or government bodies are involved in the dispute.  The Applicant and his family are not past or current members of any political groups or organisations, and there is no evidence that any political organisations, the police or local or state authorities were involved in the dispute or was used against the Applicant.  There is also no explanation as to his belief that the police would only act if bribed.  The Adjudicator found that this was not a case where the Applicant had complained to the police, been asked to pay a bribe and was then refused help unless he did so.  His choosing not to report the assaults, was based on hearsay and speculation about the misconduct and corruption of the police and the authorities.  The Adjudicator was not satisfied that the risk of torture faced by the Applicant was foreseeable, real or personal.

16.  In reaching the conclusion, the Adjudicator had also considered the COI Reports.  She acknowledged that there is a basis for the Applicant’s belief in corruption in the police and the civil service in India.  However, those reports only contained general statements which were insufficient to establish personal risk of torture.  As mentioned above, there is a simple case involving a civil debt.  There is no evidence that any state or government bodies are involved in the dispute and the Applicant’s worries remain wholly speculative.

17.  In respect of the assaults which the Adjudicator accepted as true, the Adjudicator found that the nature of, the motivation for and the degree of severity of the assaults do not approach the level of what is referred to as the torture risk in both the Immigration Ordinance or Article 3 of the Hong Kong Bill of Rights (“HKBOR”).  The Applicant had not shown that the suppliers intentionally inflicted on him severe physical or mental pain or suffering in order to obtain information, a confession, or to punish him, or intimate, or coerce him for any reason based on discrimination of any kind.  Nor was pain and suffering inflicted by, or at the instigation of, with the consent of, with the acquiescence of a public official or other person acting in an official capacity.

18.  The Adjudicator also found that, even assuming that there was indeed a risk of torture, such risk would no longer exist if he were to relocate to other part of India upon his return.

19.  Finally, the Adjudicator found that, even taking into account the low standard he had to meet, the Applicant had failed to establish the persecution risk, the risk under Article 3 of the HKBOR or the torture risk which are the grounds for the successful establishment of a non-refoulement claim.

20.  The Adjudicator also took the view that an oral hearing was not required as no questions arose concerning the Applicant’s credibility and the Applicant had not submitted any new evidence since the date of the Director’s decision. Further, the Applicant was legally represented at all stages of the first tier screening of his non-refoulement claim and the Adjudicator took the view that the Applicant had had ample time and opportunity to present and support his claim.

Should an oral hearing be conducted?

21.  I agree with the Decision and the reasons given by the Adjudicator.  She was fully aware of the basic facts and the law relating to non-refoulement claims. There should be no criticism in respect of her approach and her conclusion must be the correct one.

22.  The present case is very different from ST v Betty Kwan.  No issue arises concerning the Applicant’s credibility.  It has also been clear from the outset that the main issue in the present case is whether the Applicant would be subjected to real risk of torture if he were to return to India.  The Applicant had had ample chances to present his case.

23.  The high standard of fairness required the Adjudicator to be pro-active in assessing the merits of the case. She should not just sit back and put the Applicant to strict proof.  Where there was some important aspect which raised some concern for clarification, the Adjudicator should have informed the Applicant.

24.  It is clear that the Adjudicator had discharged such high duty.  In fact, judging from the facts of the present case, there was nothing that the Adjudicator should have warned or alerted the Applicant about the necessity of further clarification or submission.

25.  In the oral hearing before me, the Applicant submits that, had an oral hearing been conducted before the Adjudicator, he would have told her about the matters included in §§6-8 of his affirmation made on 13 September 2016.  However, those paragraphs only repeat his evidence about the nature of his business and the assaults by the suppliers.  As the Adjudicator made the Decision on the basis that these allegations were true, I cannot see how an oral hearing can further advance his case.  There is simply no unfairness to the Applicant.

26.  There is also no merit in the complaint that the Adjudicator had failed to conduct an inquiry into the conditions of the Country of Origin or to properly consider the COI Reports. As mentioned above, there is no evidence that the suppliers had sought to rely on their political affiliations to coerce the Applicant.  Neither had the Applicant sought the assistance of the police, state or local authorities. There are ample justifications to support the finding that the Applicant’s worries are wholly speculative.

27.  There is also no basis to suggest that the Adjudicator had failed to consider the impact of the treatments he received in India.  The Adjudicator had fully considered all the facts and correctly applied the legal tests in assessing the risks faced by the Applicant.  The approach of the Adjudicator cannot be faulted.

28.  For the above reasons, the Applicant’s case is not reasonably arguable with realistic prospect of success.  I refuse leave to apply for judicial review.