Mansuri Intekhab Alam Mohamed Shakil Reza v. Torture Claims Appeal Board

HCAL 806/2017

[2018] HKCFI 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 806 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 28-year-old national of India who last arrived in Hong Kong on 8 April 2011 with permission to remain as a visitor up to 22 April 2011 when he did not depart and instead overstayed until he was arrested by the police on 8 April 2014.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim with the Department on 11 April 2014 on the basis that if he returned to India he would be harmed or killed by the leader of rival political party Bharatiya Janata Party (“BJP”) and his people.  He has since been released on recognizance pending the determination of his claim.   

2.The applicant was born and raised in Gujarat, India where his parents and younger sister still live.  After leaving school he had worked as a salesman, private tutor and a company supervisor in Gujarat.  In 2008/2009 he joined political party known as Indian National Congress Party (“INC”) as a low level member distributing leaflets and attending rallies.

3.In 2010 during the local election for Members of the Legislative Assembly (“MLA”), the applicant met a leader of BJP named NP who was campaigning in the election and invited him to join BJP, and the applicant out of politeness replied that he needed time to think about it, but NP soon lost his patience and one day came to the applicant with several of his men and demanded him to leave INC to join BJP, and when the applicant refused, NP and his men threatened him that they would break his arms and legs if he continued to work for INC.

4.Thereafter one day while the applicant was putting up posters for INC for the local election, NP and his men appeared and torn down the posters, and members of the two parties soon broke into a fight during which the applicant did not suffer any serious injuries, but before NP left he warned the applicant that he would continue to harass him until he agreed to join his party.

5.The applicant soon discovered that he was being stalked by the men of NP, and one day in mid-2010 NP and his men came to the applicant’s work place and threatened his employer to fire the applicant, and not wanting any trouble from BJP, his employer subsequently terminated the applicant’s employment.

6.Thereafter NP’s men had ambushed and assaulted the applicant with hockey sticks on the street on four occasions, and while the applicant did report those assaults to the police, they just regarded them as minor arguments or incidents and failed to follow up with any investigation.  As the applicant found himself unable to put up with these harassments anymore, he therefore left his home in Gujarat to take shelter at his friend’s place in Kolkata for a month during which he had no further encounters with NP’s men, but when he used up his money, he returned home and found a job working as a supervisor in a drinking water production company.

7.However, when the men of NP learnt that the applicant had returned, they started to threaten and harass him again, and when NP won the election and became the Municipal Corporator, the applicant decided that he could no longer survive in India and therefore departed for Hong Kong on 8 April 2011 where he subsequently lodged his non-refoulement claim, and for which he completed the Non-refoulement Claim Form (“NCF”) on 19 April 2017 with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 26 May 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of violation of absolute and non-derogable rights under section 8 of the Hong Kong Bill of Rights (“HKBOR”) including right to life under Article 2 (“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”).

9.In his decision the Director on the facts of the applicant’s case found no substantial grounds for believing that there would be any real risk of him being harmed or killed by NP or his men upon his return to India, as his position and participation in INC were low that there are no reasonable grounds to believe that NP or BJP would bother to spend their time and resources to locate such a low-level member of INC, as evidenced by the fact that he had no encounter with any of NP’s men or of BJP during his stay in Kolkata, that there is no evidence of any involvement of the state or police in NP’s threats against the applicant and that reliable Country of Origin Information (“COI”) show that NP did not win any election nor is he a Corporator in India, and hence state and police protection would be available to the applicant if resorted to upon his return to India, and that reasonable internal relocation alternatives are also available in India with a large population of 1.2 billion people spread across a vast territory of more than 3 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with working experience to move to areas other than his home district such as Kolkata where he had stayed for a month without any incidents or threats from NP or BJP.

10.On 6 June 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against that decision of the Director, and for which he attended an oral hearing on 31 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board expressed credibility concerns with the applicant’s confusing and contradictory evidence about NP being a Corporator or elected member of a municipal council or of the Legislative Assembly, as uncontroverted COI put to him at the hearing show that NP was neither, and that there was in fact no MLA election at the time he claims to have been campaigning against NP caused the Board to have serious doubt that he was actively involved in politics as claimed, and that even if there had been disputes between the applicant and NP during whatever election campaign there might have been before the applicant departed India, it is highly unlikely that NP would still bother about him after all these years, the Board was therefore not satisfied that the applicant faces any reasonably possibility of being harmed by NP or his men in India upon his return. 

12.On 25 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he set out his grounds for his intended challenge as follows:

(1)  lack of legal representation in his appeal before the Board;

(2)  lack of legal assistance in providing him with a translation of his NCF;

(3)  wrongful exercise of case management power in rejecting his claim on credibility for no reasonable basis; and

(4)  lack of fair hearing for not requiring the attendance of the Director at his appeal hearing before the Board.  

13.I should mention here that at the oral hearing of his leave application, the applicant with my permission also produced a statement from Iqbal G. Mustufa Balim, the Municipal Corporator of Surat with an uncertified translation, of which he claims he was not given sufficient time to produce during his appeal before the Board and that it would go to support his claim, and which I propose to deal with later when I come to consider his ground (3) over the issue of his credibility.

14.As for his complaint in ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

15.The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and made representation before the Board and answered questions from the adjudicator without any difficulty, whilst at the oral hearing for his leave application before me, the only issue that he raised was about not being given sufficient time to produce the statement from the Municipal Corporator which he has since been allowed to do with my leave.  I therefore do not see anything amiss arising from the lack of legal representation in the appeal process.

16.Regarding his complaint under ground (2) of not being provided a translation of his NCF so that he could find out whether the interpreter did translate the basis of his claim properly, it is clear that the NCF was completed on his instruction with legal representation from the Duty Lawyer Service, and that he was assisted by an interpreter at his appeal hearing, hence in the absence of any particulars or specifics from the applicant as to how and where the basis of his claim, which has always been premised on his fear of harm from NP after being elected as the Municipal Corporator, that the interpreter may have wrongly interpreted, I am unable to see any merit in this ground of the applicant.

17.I now come to ground (3) of the applicant in which he complains of no reasonable basis for the Board to reject his claim on his credibility, of which the adjudicator expressed doubts as noted above about his claim of his involvement in politics or election at that time and of NP campaigning for and winning the election as Municipal Corporator when it was contradicted by COI shown to him during the oral hearing, and for which the adjudicator went on to explain in details in paragraphs 33 – 56 of the Board’s decision as to the various discrepancies in the applicant’s answers to the many questions put to him at the oral hearing, upon which I agree that the Board was perfectly entitled to make the evaluation of the applicant’s evidence as it did in its decision.

18.The Board then noted in its decision the following during and after the oral hearing about an issue relevant to the statement which the applicant has now produced in his leave application:

“ 54. The Board reiterated that it had a number of outstanding concerns with the Appellant’s claims, including the credibility of the claim that he was facing any threat of harm, and also the availability of relocation.

55. Asked whether he had any further comment to make in respect of these concerns he indicated that he did not, but he requested additional time to provide evidence about NP.

56. The Board indicated that it would allow the Appellant two weeks, or until 13 September 2017, to produce evidence in support of his claim that NP holds a political position as a BJP corporator in Surat.

57. On 13 September 2017, the Appellant submitted a letter requesting an extension of time, saying that it was taking longer than expected for him to arrange the supporting evidence. He asked for a further 60 to 90 days.

58. Given that NP’s claimed role as a Municipal Corporator would be a matter of public record, the Board was disinclined to grant any extension, but agreed to allow an additional week on the basis that it was not expecting to finalize the decision before that time in any case.  The Appellant was advised of this extension by phone call on 14 September 2017, and also via a letter of the same date, giving him until close of business on 21 September 2017 to support any additional information.  No further information was received within the permitted timeframe, nor had any been received at the time of the decision.”

19.In the premises the Board concluded that it did not find the applicant to have been a credible witness, which as I already noted above that it was entitled to make such evaluation based on the evidence available to it, which thus bring me to the statement now produced by the applicant in his leave application before me and with my leave, which bears the formal heading of Iqbal G. Mustufa Belim, Municipal Corporator, Chief Whip : Opposition Party (Congress), Surat Municipal Corporation, with its uncertified translation as follows in full:

“ Mr Mansuri Intekhab Alam Mohammed Shakil Reza was the member of (INC) Indian National Congress. He work as a member of party. During the election period member of (BJP) Bhartiya Janta party (NP) and Mansuri Intekhab Alam Mohammed Shakil Reza had argument and fight. That fight take place personal fight. The member of (BJP) Bhartiya Janta Party (NP) give very serious warning that if he find him Mansuri Intekhab Alam Mohammed Shakil Reza, he will kill him. They had ever very serious fight also so therefore we suggest to Mansuri Intekhab Alam Mohammed Shakil Reza to stay away till matter not solve.”

20.Firstly, uncertified translation aside, and putting the applicant’s case at the highest, this statement merely confirms the membership of the applicant and NP in their respective parties, that there had been personal dispute between the two of them, and that NP had threatened to kill the applicant as a result, but none of which were of serious issues before the Board, or for that matter before the Director.

21.More importantly, this statement does not address the real issues raised by the Board in its decision and noted above, as regard the position of NP in BJP or his election as Municipal Corporator or as a Member of the Legislative Assembly, which was in the Board’s view crucial to the capability, degree and extent of the threats of harm which NP could have exerted to the applicant upon his return to India.  As such and even in the absence of any issue over its authenticity, it does not in my judgment advance his claim any further than it was before the Board.  For these reasons I do not find any merit in this ground of the applicant.

22.As for his complaint in his last ground (4) over the non-attendance of the Director at his appeal hearing, I fail to see how he could be prejudiced or adversely affected by the absence of the Director or his representative in his appeal hearing, as the mechanism for his appeal which is a rehearing of his claim to be before a different person who has nothing to do with the Immigration Department is actually a safeguard to ensure fairness in the process of the determination of his claim, and I fail to see any basis or merit in this complaint of the applicant.

23.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.

24.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 18^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