Akbar Md Faishal v. Torture Claims Appeal Board

HCAL 335/2017

[2018] HKCFI 697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 335 of 2017

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 24-year old Indian national who last came to Hong Kong on 5 August 2015 with permission to remain as a visitor until 19 August 2015 but he overstayed and surrendered to the Immigration Department on 20 August 2015.  Whilst released on recognizance pending investigation by the Department, he was arrested on 15 February 2016 for breach of condition of stay for which he pleaded guilty on 18 February 2016 before the Shatin Magistrates’ Court for taking up unapproved employment and was sentenced to imprisonment for two months.  On 18 March 2016 whilst in prison he raised his non-refoulement claim, and upon completing his sentence helodged his Non-refoulement Claim Form (“NCF”) on 17 May 2016 with the Immigration Department for non-refoulement protection for fear that he would be killed by his creditor for failing to repay monies owed to him who is also an influential member of the Trinamool Congress Party (“TMC”), the ruling political party in his hometown.

2.The applicant was born and raised in Kolkata, India where he lived with his parents and two younger brothers.  After receiving eight years of formal education, he claimed to have started a business selling mobile phone and computer in 2012 with a loan of 1.5 million Indian Rupees from AS who was a member of the TMC and for which the applicant was required to pay a 10% interest per month.

3.Initially when his business was faring well, the applicant was able to make repayments of about 15,000 to 20,000 Indian Rupees per month and sometimes more to AS,but when it faltered in mid-2013 he claimed to have borrowed another loan of 1.5 million Indian Rupees from AS to cope with his cash flow problems.  However, things did not improve despite his many trips to Thailand, China and Hong Kong which he said were forhis business during that period, and by the end of 2014 he stopped making any repayment to AS altogether, for which AS repeatedly made threatening demands for full repayment which escalated to violence one day in June 2015 when he sent three men to attack the applicant on the street by punching and kicking him for some five minutes before intervention by passers-by allowed the applicant to escape into hiding.

4.The applicant never reported the assault to the police given AS’s political influenceon the local police and that he regarded their dispute as a private matter.  However, when he continued to receive threatening phone calls from AS, the applicant decided to leave India for Hong Kong where he used to visit many times before for his business, and so he flew in on 5 August 2015 and subsequently lodged his non-refoulement claim. 

5.By a Notice of Decision dated 15 June 2016 the Director of Immigration (“the Director”) rejected his claim on then all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 ofthe Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.Essentially the Director found the applicant’s claim about his business and money dispute fraught with inconsistency and contradiction, that it is unsupported by any objective evidence and ultimately unconvincing, that even if it is true objective Country of Origin Information (“COI”) show that reasonable state protection would be available to him to negate the risk of any harm from his creditor, and that internal relocation in other parts of India such as New Delhi which would not be considered unduly harsh for him as an able-bodied young man to live and work safely if he is to return to India.

7.Given that the applicant’s dispute with his creditor is private in nature even on his own case, and in the absence of any evidence that the police or the state were involved, it is no surprise that in the light of the materials before him the Director proceeded to reject the applicant’s claim on torture risk, BOR 3 risk and persecution risk. 

8.By a Notice of Further Decision dated 21 April 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit any additional facts relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any absolute and non-derogable rights under the Hong Kong Bill of Rights including right to life under Article 2 (“BOR 2 risk”).

9.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”), which he filed on 28 June 2016 against the earlier decision of the Director, and attended a hearing before the Board on 26 April 2017 in person during which he gave evidence and answered questions from the Board.  On 21 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.Upon first establishing the legal principles that in considering whether or not the applicant faces a real risk of persecution, torture or CIDTP or that his inherent right to lifewould be violated, that the credibility of his assertions as to his past and present situation must be assessed, and upon hearing him in evidence and his answers to questions put to him, the Board proceeded to make unequivocal findings in its detailed and carefully considered decision from paragraphs 50 to 75 that nothing of what the applicant presented in evidence relating to his business or his debts to AS could be relied on as the primary basis why it concluded that he would not face any real risk of harm if he returns to India, hence the question of relocation within India would not arise, but that if relocation had been necessary, it was not accepted that AS’s influence would extend beyond his neighborhood in Kolkata, while TMC is a regional party without much influence outside West Bengal, hence the applicant could re-locate without undue hardship to some other city in India.

11.Nevertheless the applicant on 28 June 2017 filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he set out his grounds for the intended challenge which are essentially as follows:

(a)  insufficient time for him to prepare for the hearing before the Board due to his limited English and inability to hire an interpreter; and

(b)  improper reliance by the Board on COI which were not officially recognized or were simply hearsay or lack of credible sources and for making groundless speculations that it would be safe for him to return to India. 

12.Although the applicant did also indicate that he would like to attend an oral hearingof his application which was then held on 6 March 2018, he failed to appear at all withoutany explanation.  I have nevertheless proceeded to consider his application in his absence. 

13.For the first ground and according to his supporting affirmation of the same date, the applicant claims that for his hearing on 26 April 2017 before the Board, he was provided by the Director of the hearing bundle with documents all in English only six days before the hearing, thereby giving him insufficient time to prepare for the hearing due to his limited skills in English and being legally unrepresented.

14.His claim of not being able to hire an interpreter for the hearing is a non-starter as he was properly provided with a Hindi/English interpreter at the hearing during which he was able to address the Board through the interpreter without any difficulty or problem, and of which he never raised any issue with the adjudicator during the hearing.

15.As for being given the hearing bundle only six days prior to the hearing, this is what was recorded by the adjudicator in the Board’s decision about that matter at the hearing:

“ 13. The Applicant confirmed that he had received the Immigration Department’s letter dated 6 April 2017 and that he might have received the further decision. I explained their content and provided him with copies of those two letters at the beginning of the hearing.

14. His attention was drawn to his completed NCF and the record of interview with the Immigration Officer in the hearing bundle, which had each been translated to him at the time they were made and he confirmed that what he said in the NCF and interview was true.”

16.It therefore seems clear to me that it was not an issue at the hearing before the Board, as the applicant never made any complaint about insufficient time to prepare or asked for time or adjournment of that hearing.  In any event, it seems to me that the applicant would have already been familiar with or at least have read most of the documents in thathearing bundle such as his interview records with the Immigration Officer, the Director’s earlier decision, evidently the letter dated 6 April 2017 from Immigration Department inviting him to submit additional facts, and whatever documents which he had earlier submitted, or even the further decision of the Director which it was stated that he might have also received.

17.As for the second ground, in the absence of any particulars or specifics provided by the applicant, it is simply impossible to see how the Board may have improperly relied on COI or which parts of them were based on hearsay or unreliable source.  As the applicant’s claim is founded on the existence of a debt to AS arising out of his mobile phone business, and as the Board has clearly not been satisfied that he had such a businessor incurred any such debt to AS in connection with it, and upon concluding that “nothing that the Applicant has said about his business, the loans from (AS) and the attacks upon him and the threats made against him in connection with the loans, can be given any credence”, and that “he is not a witness of truth …”, the Board therefore rejected his claim on all applicable grounds, and I see nothing wrong in law or procedure for the Board to deem it unnecessary to dwell on COI to assess that there would be no real risk whatsoever for the applicant to return to India.

18.In any event, in confirming the Director’s decisions the Board must have also agreed with his assessments of the applicant’s claim based on the objective COI before the Director, of which I have considered with rigorous examination and anxious scrutiny, and I am unable to see any basis or merit in this ground of the applicant either, or in general any error in law or procedure unfairness in either decisions of the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim. 

19.In the premises and for the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 29^th day of March 2018.

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