Mohammad Sabir v. Torture Claims Appeal Board

HCAL 979/2017

[2018] HKCFI 937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 979 of 2017

BETWEEN

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

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 35-year-old national of India who last arrived in Hong Kong on 21 March 2014 with permission to remain as a visitor up to 4 April 2014 when he did not depart and instead overstayed until he was arrested by the police on 7 April 2014.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 9 April 2014 with the Department on the basis that if he returned to India he would be harmed or killed by the brothers of the woman with whom he had an affair.  He has since been released on recognizance pending determination of his claim. 

2.The applicant was born and raised in Ekbalpur, Kolkata, West Bangal, India.  After leaving school he worked as a tailor and got married with two children.  In 2012 he started an affair with a co-worker JS, and after his wife learnt of the affair and left him, JS wanted him to marry her and told her family about it, but her brothers were however very upset about their relationship especially RJ who was influential with political connection, and one day in March 2014 while the applicant was away, RJ with other brothers of JS came to his home and threatened his mother that they would kill him over his affair with their sister. 

3.Upon his return and being told of RJ’s threats, and on his mother’s advice the applicant decided to leave India for his own safety and arrived in Hong Kong in April 2014 when he subsequently lodged his non-refoulement claim with legal representation from the Duty Lawyer Service. 

4.By a Notice of Decision dated 21 April 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of violation of any absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) including right to life under Article 2 of section 8 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”). 

5.In his decision the Director found no evidence other than the applicant’s assertion based on hearsay of the threats from JS’s brothers, and assessed even on his own case that such risk as low, that police and state protection would be available to him upon his return to India as his dispute with JS’s family is clearly a private personal matter, and that Country of Origin Information (“COI”) show that internal relocation alternatives are available in India with a large population of 1.2 billion people spread over a vast territory of more than 3.2 million square kilometers that the applicant can relocate to any cities away from his home district such as New Delhi well beyond any threats from JS’s family.  

6.On 2 May 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and on 25 July 2017 he attended an oral hearing before the Board but declined to give any evidence or to answer questions from the adjudicator for the Board.  On 20 November 2017 his appeal was dismissed by the Board which also confirmed the director’s decision.

7.In its decision the Board found various inconsistencies and contradictions in the applicant’s claim and questioned his credibility but was unable to obtain any clarifications or explanations from him due to his refusal to testify at the hearing, and that even on his own case there is no direct or reliable evidence of any threats of harm to him, that given the nature of the dispute clearly state or police protection would be available to him upon his return to India, and similarly reasonable internal relocation alternatives are available for him to move to live anywhere other than his home district and beyond any resources or capability of the brothers of JS to locate him. 

8.On 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision on the basis of procedural unfairness under four categories as follows for his intended challenge:

(1) that the Board unlawfully fettered its discretion in refusing his appeal on the ground that it did not satisfy the requirement;

(2) that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3) that the Board’s decisions in refusing his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness; and

(4) that the Board failed to meet the greater care and duty owed to a self-represented claimant. 

9.All these grounds are just broad and vague statements without any specifics, but in support of his claim of procedural unfairness, the applicant did state in both his Form 86 and supporting affirmation of the same date the following complaints:

(1) that he was given the hearing bundle with documents all in English only six days before the hearing of his appeal before the Board thereby not providing him with sufficient time to prepare for his appeal or to find proper interpreter to assist him; and

(2) that the Board relied significantly on sources of news not officially recognized or was simply hearsay or outdated resulting in groundless speculation of his safe return to India.  

10.For his first complaint, the applicant claims that it was only on 18 July 2017 when he was given the hearing bundle by the Director for his appeal hearing on 25 July 2017 before the Board, and as all the documents were in English, there was not sufficient time for him to prepare and to find a proper interpreter to assist him for the appeal.  Even if he indeed only received the bundle on 18 July 2017, of which he never raised any complaint to the Board at his oral hearing on 25 July 2017, it is plain that he was already well familiar with most of the documents which consisted of his non-refoulement claim forms which were completed by him, the summary of his assertions and the basis of his claim for protection prepared by his lawyer, records of his screening interviews as well as the Director’s decision all when he still had legal representation under the Duty Lawyer Service, while an interpreter was provided by the Board to assist him at his oral hearing during which as noted he declined to testify.  In the circumstances I do not find anything amiss arising from any late provision of the hearing bundle to him or anyway in which he could be so prejudiced.  

11.As for his second complaint over improper reliance of COI by the Board, the applicant has never provided any particulars or specifics as to how or where the Board got it wrong with the COI or which of them were not officially recognized or were hearsay or outdated, which is plainly his duty to do so, as has been held by the Court of Appeal that even high standard of fairness does not entitle a claimant to just make the claim and then sit back and require the Director or the Board, and in this case the Court, to prove it: see CH v Director of Immigration [2011] 3 HKLRD 101 at paragraph 47. 

12.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  

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

Dated the 4^th day of May 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