Khan Zainul Abedin v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 810/2017

[2018] HKCFI 1542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 810 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 48-year-old national of India who arrived in Hong Kong on 31 March 2013 with permission to remain as a visitor up to 26 May 2013 when he did not depart but instead overstayed until he was arrested by the police on 7 August 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim with the Department on 9 August 2014 on the basis that if he returned to India he would be harmed or killed by supporters of rival political party Trinamool Congress party (“TMC”). He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Khidderpur, Kolkata, India and are married with three children now living in West Bengal, India.  After leaving school joined the Communist Party of India (Marxist) (“CPI(M)”) and worked as a salesman until 2001 when he started to run his own garment business.  He was later elected to be a local committee member of CPI(M) and participated in various election activities from 1988 to 2012.

3.Sometime in 2012 after returning from a business trip to Hong Kong, the applicant was told by his wife that some TMC members had threatened to kill him and to harm his family, but he did not report the threats to the police as he feared that the police were under the influence of the TMC.

4.One night in late 2012 while the applicant was on his way home, he was attacked by several TMC supporters with an iron bar and was struck on the head until he lost consciousness.  As a result he was hospitalized for more than three weeks.  After he was discharged from hospital, he decided to leave India for his own safety and therefore departed on 30 March 2013 for Hong Kong where he subsequently lodged his non-refoulement claim for which he completed his Non-refoulement Claim Form (“NCF”) on 28 April 2016 with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 7 July 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), 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.In his decision the Director found the low intensity and frequency of past ill-treatment from TMC members indicative of low level of risk of harm from them upon the applicant’s return to India, in the absence of any evidence of any state or police involvement that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with vast work experience to move to other areas away from his home district such as Delhi where he can safely live and work without fear of any threats from TMC.    

7.By a Notice of Further Decision dated 15 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, which appeal he filed on 19 July 2016, and for which he attended an oral hearing on 30 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board upon hearing the applicant in evidence was not prepared to accept that he was ever a formal member of CPI(M) or did anything within the party at the high level claimed or that he had a high profile with the party other than possibly a supporter which made his claim to have suddenly in 2012 been subject to threats and intimidation by TMC members implausible, and concluded that the applicant does not face a real risk of being killed or otherwise subjected to proscribed harm should he return to India, and that his case for non-refoulement has not been made out. 

10.On 26 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the Board had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in deciding with the applicant’s appeal;

(3)  that the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness;

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

(5)  that the Board had significantly relied on the source of news not officially recognized or were hearsay.     

11.These are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case such as how the Board had unlawfully fettered its discretion, or in what way were its decisions unreasonable or irrational in the public law sense, or which COI were not officially recognized or were simply hearsay.

12.The only discernable elaboration of procedural unfairness that the applicant has made is his complaint of the hearing bundle being provided to him just six days before the appeal hearing before the Board, and with the majority of the documents in English including the Director’s skeleton submission thereby giving him insufficient time to find an interpreter and to prepare for his appeal. 

13.Even assuming that that was indeed the case, and I note that there were no documentary evidence produced by the applicant such as the letter from the Director which accompanied the bundle, it is plain that most of the documents including his NCF, records of his screening interviews and the Director’s decisions were already made available to him earlier when he was still having legal representation and hence with which he would be well familiar, whilst at his oral hearing before the Board he was well assisted by an interpreter during which he never raised any issue about the hearing bundle or requested for more time to prepare for his appeal.  I do not see anything amiss arising from the hearing bundle or that he had been prejudiced as a result.

14.Nevertheless and having proceeded to consider 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.

15.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 3^rd day of August 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