TAJUDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL388/2017

[2018] HKCFI 103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 388 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who arrived in Hong Kong on 3 March 2014 and was permitted to remain until 17 March 2014.  He returned again on 30 May 2014 and was permitted to remain until 13 June 2014.  On that day he applied for and was granted an extension to stay until 18 June 2014.  He did not depart as required and overstayed in Hong Kong.  He was arrested by the police on 24 June 2014.  On 26 June 2014 he lodged a non-refoulement protection claim.  This claim was rejected by the Director of Immigration (“the Director”) on 11 July 2016 and 5 May 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected it on 4 July 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 12 July 2017 and requested an oral hearing which was set down on 3 November 2017.  A notice of hearing dated 30 August 2017 was posted to the applicant’s address supplied by him informing him of the hearing date and time.  The applicant had applied for legal aid but it was refused.  The applicant was absent on the hearing date.

3.  The court interpreter telephoned the applicant and confirmed he was speaking to the applicant who initially informed the interpreter that he had forgotten the court date hence his absence.  He then told interpreter that he had a fever and was unwell but had not yet been to a doctor.  He informed the interpreter that he would be going to the hospital later that day for medical treatment.  I reserved my decision that morning but since that date have received no correspondence from the applicant.  I have considered his application on the papers.

4.  The basis of the applicant’s claim was that if he were to return to India he would be ill-treated or even killed by his ex-business partner, his uncle and their associates because he had failed to repay money owed to them.  He also feared that he would be arrested by the police for a false case fabricated against the applicant by the same people.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions and therefore I only intend to summarise it here.

5.  The applicant was born in Kolkata, India, had four years of schooling before he worked in a shop and then set up his own business. He and a friend decided to set up a mobile phone business together but he had no capital and had to borrow 200,000 Indian rupees from that friend’s uncle.  That friend was an influential member of the Communist Party of India.  He had to repay that loan within 11 months.  He and his friend rented a shop and their business started well until suddenly the loan was called in immediately in about March 2014; just after he returned from a business trip to Hong Kong.

6.  In April 2014, his business partner, the uncle and five or six other men attacked the applicant with sticks when he did not have the funds to repay the loan immediately.  He had to seek medical treatment for his injuries and moved to live with a friend some 15 minutes away from his home.  His mother told him that the police came to his home to look for him and even assaulted his brother.  The applicant was afraid that his enemies had filed a false police case against him so he fled to Hong Kong.

7.  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”).

8.  The adjudicator treated the appeal hearing as a rehearing and correctly set out the law and key legal principles applicable to all four grounds.  He also considered the credibility of the applicant and how his credibility should be assessed bearing in mind the nature of these claims.  The adjudicator took into account that it was quite possible for the centrepiece of the applicant’s claim to stand despite the presence of some exaggeration, uncertainty and even untruthfulness.  He then set out the facts of the applicant’s claim and the evidence he provided in the form of his statements and interviews.

9.  The adjudicator reached the conclusion that the applicant was not a witness of truth and that not even the centrepiece of his claim was reliable; in other words, he was not a genuine claimant. In his decision he gave full reasons for his finding, he set out the reasons why he found the applicant’s evidence unreliable, inconsistent and where it was material, unbelievable.  His evidence was vague and he was unable to answer simple questions and give adequate detail of his business, accounts and business loan.  The adjudicator concluded that he was in absolutely no doubt whatsoever that this applicant was not a witness of truth and that no credence could be attached to any of his statements.

10.  As a result of this finding, the adjudicator went on to conclude that the applicant had failed to establish he would face a real risk of persecution, a real risk of torture or CIDTP under Article 3 of HKBORO, a real risk of being deprived of his right to life under Article 2 of HKBORO and a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if he is refouled to India.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.  The applicant has indicated in his Form 86 that the Director was a punitive respondent.  The applicant applies for leave to judicial review his decision as well. However, I take the view that this is not the right course of action to take; to judicial review both the Director’s decision as well as the adjudicator’s decision.  The applicant already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or a rehearing.  There is no room thereafter to judicial review the Director’s decision. It will be only the TCAB decision that is subject to a judicial review.  I will go on to consider the grounds of this application against the decision of the TCAB only.

12.  The first ground of review is that the adjudicator failed to seriously consider the applicant’s fear under all four applicable grounds.  He failed to consider the fact his enemies plan to remove him from the business and file a false case against him.  The second ground was similar in that the adjudicator failed to consider one of his enemies was a politician and powerful.  It meant the police would work for his enemies since they were corrupt.  This was proved by the fact that his brother was assaulted in his own home.

13.  The adjudicator did not fail to consider the applicant’s case and facts.  He did consider the evidence and claim but found it not credible.  I am satisfied the adjudicator gave full reasons for reaching his conclusion and they were more than reasonable.  There is no merit in these grounds and they are not arguable.

14.  None of the grounds put forward by the applicant showed any error of law by the adjudicator.  There was no 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.  Since none of the grounds were reasonably arguable, there is no realistic prospect of success.  I refuse leave for judicial review.

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

Form CALL-1