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HCAL 1320/2021
[2024] HKCFI 2770
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1320 of 2021
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BETWEEN
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Alagar Kumaresan |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 21 September 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 30 July 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 December 2018 (the “Notice”).
2. The Applicant had requested an oral hearing. However, before his leave application was processed, he had been removed from Hong Kong. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.
Background
3. The Applicant is an Indian national. He entered Hong Kong on 29 November 2014 as a visitor with permission to stay until 13 December 2014. He overstayed. He was arrested by the police and referred to the Immigration Department on 19 December 2014. On the following day, he made a non-refoulement claim.
4. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He is now seeks leave to apply for judicial review of that Decision.
The Applicant’s case
5. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, the Applicant said he had fallen in love and eloped with a girl of a higher caste and claimed that, if returned to India, he will be harmed or killed by his girlfriend’s father.
6. The Applicant, now aged 33, was born in Avarampatti, Thanjavur District, India. He is single. His parents and siblings are all living in India. He had received formal education for 15 years.
7. The Applicant claimed he had developed a relationship with his girlfriend who came from a high caste family. Her father was a counselor of Anna Dravida Munnetra Kazhagam. He is rich and politically powerful. In March 2014, his girlfriend’s father came to know about their relationship.
8. One day, the Applicant was intercepted by his girlfriend’s father and three men. They scolded at him in foul language and beat him with bare hands. Then they dragged him into a nearby forest and assaulted him with steel weapons. They threatened to kill him if he reported the incident to the police. He fainted for about two hours. After he regained consciousness, he went to a hospital for treatment. He did not make a report to the police because he was scared.
9. In April 2014, the Applicant and his girlfriend eloped to Chennai where he found a job as a car salesman. Meanwhile, his girlfriend’s father and his associates went to his home and asked his parents for his whereabouts. They beat up his parents because his parents were unable to tell.
10. Eventually, his girlfriend’s father found out where the Applicant was working. He and his associates confronted the Applicant outside his work place. They attacked him with wooden sticks and glass bottles. They demanded him to tell them where his girlfriend was, but he refused. Then, they took him to an unknown place and locked him up for three days.
11. In the meantime, his friend learned about what had happened and took his girlfriend to his home for hiding. Eventually, the Applicant escaped and got in touch with his friend and his girlfriend.
12. The Applicant’s girlfriend went back to their motel room to pack up. There, she was caught by her father and his men. When the Applicant turned up subsequently, he was also caught by his girlfriend’s father and his men. They took his girlfriend away and drove him to a mango farm. There, they assaulted him with wooden sticks until the security guard of the farm and some villagers intervened. The security guard took the Applicant to his home where he stayed for about ten days. His mother and his friend came to visit him. On their advice, he flew to Hong Kong to seek protection.
13. While in Hong Kong, he was told by his friend in December 2014 that his girlfriend was pregnant with his child and that his girlfriend’s father had been to his parents’ home asking for his whereabouts and burnt down their garden and rice field. Thereafter, he lost contact with his friend and girlfriend.
14. He does not believe that the Indian authorities and police could protect him, as they are corrupt and would only work for the ruling political party. He does not believe internal relocation viable because his girlfriend’s father could locate him throughout India through his powerful network.
The finding of the Board
15. The Applicant testified before the Board. The Board found numerous and significant inconsistencies between his testimony before the Board and his evidence in the NCF. Hereunder are some examples.
16. In his NCF he said that his girlfriend’s father knew about their relationship because some of his villagers told him that the Applicant escorted his daughter home on his bike; but he told the Board that it was because his girlfriend’s uncle saw them having ice cream together.
17. He told the Board that when he regained consciousness after the first assault, he recovered his bike and rode home. Previously, he said he hopped on a passer-by’s bike to go home. When confronted with the inconsistencies, he said a passer-by helped him by taking him home on his own bike.
18. He told the Board that after the first assault he spent around one hour in a private clinic; but previously, he said he spent five to six hours in a hospital for his treatment.
19. He told the Board that following his escape from captivity he and his girlfriend were caught by her father together when they returned to gather their belongings in the motel room. Previously, he said his girlfriend was first caught by her father in the motel room and he was caught subsequently when he returned there to retrieve some clothing and documents.
20. He was unable to give a satisfactory explanation for the inconsistencies. He attributed the inconsistencies to interpretation errors and the failure of his memory. These inconsistencies led the Board to the conclusion that he had fabricated his claim. The Board therefore found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.
Legal principles applicable to judicial review
21. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
22. The Applicant did not advance any grounds for review in his Form 86 and his supporting affirmation. In his written submission, he made a general and un-particularized complaint about lack of proper legal and language assistance and advanced the following grounds of review:
(1) the Board had unlawfully fettered its discretion by refusing his appeal on the ground that he did not meet the requirement;
(2) the Board acted in a procedurally unfair manner in dealing with his appeal;
(3) the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or is the result of procedural errors or unfairness; and
(4) the Board failed to meet the greater care and duty owed to a self-represented claimant.
Ground (1) – Unlawful exercise of discretion
23. Under this ground, he accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for review. If the Applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss his appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.
Ground (2) – Procedural unfairness
24. The Applicant made a general complaint about procedural unfairness, but gave absolutely no particulars of the unfairness alleged. This Court could only bear this ground in mind in its overall scrutiny of the Board’s Decision.
Ground (3) – unreasonableness and irrationality
25. The Applicant gave no particulars of the unreasonableness and irrationality complained of. He did not even identify the particular finding which he alleged is unreasonable or irrational. The Court could only leave this issue to its overall scrutiny of the Decision.
Ground (4) – Breach of greater care and duty owed to a self-represented claimant
26. The Applicant did not particularise the duty and the breach. Again, the Court could only leave this issue to its overall scrutiny of the Decision.
Lack of proper legal and language assistance
27. The Applicant also gave no particulars of this complaint in his written submission about lack of proper legal and language assistance. His complaint is not about total absence of such assistance, but about the quality of the assistance provided. To the Court’s knowledge, claimants are usually provided with free legal and language assistance. A claimant is provided with legal consultations with the assistance of an interpreter. He had legal and language assistance in filling in his non-refoulement claim form and in attending the screening interview which is the most important process in the non-refoulement proceeding.
28. As revealed by the documents, the Applicant attended the screening interview in the presence of his legal representative and an interpreter. The record of interview shows that the questions and answers were fully noted down in the record, the record was printed and read back to the Applicant, the Applicant was asked if he wished to make any addition, deletion or amendment to the record. The Applicant answered in the negative. Both the Applicant and his legal representative were asked if they had any comments and they both replied in the negative and then signed the record. The surrounding circumstances and the fact that both the Applicant and his representative signed the record without amendment suggests that the Applicant had proper interpretation assistance. On the face, the Applicant also had legal assistance. Whether he had proper legal assistance is a matter which this Court could not assess in the absence of particulars of the inadequacy and deficiency.
29. The Applicant also had language assistance at the appeal hearing before the Board, though not legal assistance. In Zafar Muzzam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[11] Nor the judgment of FB v. Director of Immigration[12] prescribes that a claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the Applicant was prejudiced due to lack of legal representation before the Board.
30. The Applicant had the benefit of legal representation in presenting his case to the Director. All the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.
Overall scrutiny
31. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible and rejected almost the entirety of his case. This is a finding of fact solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
32. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated the 15th day of October 2024
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(Seline Sze)
for Registrar, High Court
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Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 15/10/2024
Alagar Kumaresan
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/10/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15051/18/12/408/IN2981
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4580/18 (Formerly RBCZ/10022/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 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
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
[6] CACV 2/2018, (unreported) 23 March 2018
[7] [2018] HKCA 14
[8] [2018] HKCA 15
[9] [2018] HKCA 17
[10] [2018] HKCA 37
[11] (2004) 7 HKCFAR 187
[12] HCAL 51 of 2007
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