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

HCAL 2433/2018

[2020] HKCFI 1731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2433 of 2018

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 be refused.

Observations for the Applicant:

THE APPLICATION

The applicant

1.  The applicant is an Indian national. He came to Hong Kong on 2 August 2014 and was allowed to stay as a visitor until 16 August 2014. He overstayed. He was arrested by police on 2 September 2014 and was referred to the Immigration Department for investigation. On 4 September 2014, he lodged a non-refoulement claim.

2.  He claimed that if refouled, he would be harmed or killed by Bhutta, who would take revenge for being attacked and injured by the applicant and other supporters of All India Trinamool Congress.

3.  He claimed that he had grudges with Bhutta. In late July 2014, his group of people and Bhutta’s group of people had a fight in the street. He had suffered bruises and swelling in his fists. On the same afternoon, he was walking along the street. He saw Bhutta, who was alone. He called his friends who came along with hockey sticks. They hit Bhutta for some 15 minutes. He fled the scene. He was told that Bhutta was badly injured. Bhutta’s family and police were looking for him. He therefore fled to Hong Kong.

The Director’s Decision

4.  The Director considered his application in relation to the following risks:

a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.  By Notice of Decision dated 18 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.  The applicant appealed to the Board against the Director’s Decision and he appeared before the Board on 27 July 2018.

7.  By Decision dated 18 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.  The Board considered the applicant’s evidence. For the reasons that it set out in its Decision, it concluded that the applicant would not face any real or substantial risk of serious harm if he returned to India [60]. This conclusion was reached on the basis that the Board accepted his account of what happened [55]. However, it found that the dispute was essentially a personal one deriving from two men’s longstanding personal antipathy dating from childhood [56]. The Board considered that the risk of him actually being harmed by Bhuttu or his associates was to be negligible [57]. State protection was available to him [58] and internal relocation was an option open to him [59].

Application for leave to apply for judicial review

9.  The applicant filed Form 86 dated 1 November 2018 for leave to apply for judicial review of the Board’s Decision.

10.  He relied upon the grounds attached to Form 86, which I shall summarize below:

1. the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

2. the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

3. he was confused at the appeal hearing;

4. the Adjudicator was unfair and had not given greater care to a self-represented claimant;

5. the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

6. the Adjudicator had applied the incorrect standard of proof;

7. the Adjudicator had considered irrelevant facts or had failed to considered facts which were in favour of his case;

8. the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

9. the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

10. the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

11. the Adjudicator had not considered USHR 2010, USRF 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to India” Autumn 2011, which is favourable to his case;

12. the Adjudicator failed to fulfil his obligation to obtain the requisite documents for his adjudication;

13. the Adjudicator was wrong in state protection in his country;

14. BOR 2 risk was assessed without screening;

15. the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and

16. the applicant was not legally represented or legally assisted before the Board.

DISCUSSION

11.  The applicant appeared before me and he confirmed that he was free to advance his case before the immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had assisted him to understand the hearing bundle and the Board’s Decision.

12.  I put the Board’s findings to him and asked him if he had any comments on them. He said that he had hurt Bhutta and he believed that Bhutta would take revenge on him. He had no other comments on the Board’s findings.

13.  It is quite obvious that the Board took what he said as the facts of the case. But applying the laws and Convention to his case, he simply had no case for non-refoulement under the law. The applicant is unable to show how the Board had made any mistakes in its assessment of the case.

14.  The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

16.  The Court of Appeal in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

17.  The grounds above are irrelevant. They are inconsistent with the facts stated in court (1‑3 & 14); opinions without any evidence or particulars (4-13) or simply not raised before the Board (15). Ground (16) will not assist him as found by the Court of Appeal.

18.  There is nothing amiss in the application of the relevant statutory provisions and the Convention by the Board to the applicant’s case.

19.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

20.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application for leave to apply 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