Rai Pancha Mani v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL1022/2018

[2019] HKCFI 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1022 of 2018

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave for judicial review of the Decisions of:

(1)  The Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”); and

(2)  The Director of Immigration (“the Director”).

The applicant

2.The applicant is a national of India, who came to Hong Kong on 6 July 2016 legally and was permitted to stay as a visitor until 20 July 2016 by the Director. He overstayed unlawfully. On 15 August 2016, he surrendered himself to the Immigration Department and lodged his non-refoulement claim. On the same day, he was released on recognizance.

3.The applicant lodged his non-refoulement claim with the Director on the ground that if he returned to India, he would be killed by the gangsters including Abid Malik, Nawab Ahamad and Gajendra Parshai because they would take revenge on him. He also said that he would be killed by the people of Trinamool Congress Party (“TMC”) because he did not support them but supported Gorkha Jan Mukti Morcha, its rival party.

4.In his statements given to the Director and the Adjudicator, the applicant said that he had been kidnapped by the TMC people; that he was demanded ransom money of two million rupees; that he had been robbed by these people in the jungle and that he was released only after his sister paid the ransom money. He further said that he had reported the matter to the local court, which could not help him. He reported it to the High Court. The police caught three men and they were sentenced to two years’ imprisonment. He had relocated himself to others areas. But he believed this was useless as he considered that the police and TMC were colluding together.

The Director’s Decision

5.He did not go through the unified screening mechanism because when the Director arranged the interview to take place on 6 June 2017, he did not attend. He told the Director that he was not feeling well on that day.

6.The Director demanded a medical certificate from him by 7 June 2017, failing which his application would be assessed on the materials available.

7.On 7 June 2017, he produced a medical certificate dated 6 June 2017.

8.However, the Director by letter dated 8 June 2017, sent him a letter, requesting him to answer the questions on the Question Sheet on the reason that it was done in the interest of prompt and effective assessment of his claim.

9.He had answered all the questions.

10.The Director assessed his application on the following risks:

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

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.  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 under RC”).

11.By Notice of Decision dated 5 July 2017, the Director rejected his application with reasons set out in his Decision (“the Director’s Decision”).

Appeal to the Board

12.He appealed to the Board.

13.The Adjudicator of the Board held a hearing on 16 March 2018. He said in his Decision dated 16 May 2018 (“the Board’s Decision”) that the whole case would be considered afresh on the four risks above, based on the documents placed before him so that the applicant might make direct representation to him or could produce further documents. See [4] of his Decision.

14.The Adjudicator had considered the Non-refoulement Claim Form and the Questions Sheet with the applicant’s answers. He had also asked the applicant questions.

15.After the hearing, the Adjudicator found that the applicant was kidnapped and robbed by the gangsters as he said. But the kidnap and robbery were committed as crimes without any political connotations. See [82] of his Decision.

16.The Adjudicator also found that the applicant was not in genuine fear of being harmed or killed as he alleged. See [91] of his Decision.

17.By its Decision, the Board refused his appeal and confirmed the Director’s Decision.

Application for leave for judicial review

18.By Form 86 dated 5 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision and the Director’s Decision.

19.In his affirmation in support of his application, he stated the following grounds:

(1)  he was deprived of the opportunity of attending an interview as he was ill on 6 June 2017;

(2)  the Director could not rely upon the reason “in the interest of prompt and effective assessment of my claim” as the reason for not having an interview with him;

(3)  he was given the hearing bundle, but he did not understand the contents of it because they were in English and nobody explained the contents to him; and

(4)  the Board’s Decision written in English was also not interpreted to him.

DISCUSSION

The Director’s Decision

20.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision with wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

21.Grounds (1) and (2) appear to be special circumstances which require further consideration because there is no dispute that the Immigration officer had asked the applicant to produce a medical certificate to prove that he was unfit to attend the interview schedules on 6 June 2017 by 7 June 2017. He had complied with the request and the Immigration officer was satisfied that he was unable to attend the interview on 6 June 2017 on medical reason. Nevertheless, the Immigration officer, for “the interest of prompt and effective assessment” decided to assess his case on the papers. He sent the questionnaire to the applicant for answers. The applicant had provided the answers as requested. The Director assessed his application on the papers accordingly.

22.Under section 37ZB of the Immigration Ordinance, Cap. 115 (“the Ordinance”), the Immigration officer has the power to require information from the applicant. Under section 37ZB(1)(b), the Immigration officer has to have an interview with the applicant:

(1)  After a completed torture claim form is returned by a claimant, an immigration officer—

(a)  may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies; and

(b)  must require the claimant to attend an interview to provide information and answer questions relating to the claimant’s torture claim.

23.Although the applicant did not put the above procedural irregularity in his Notice of Appeal to the Board, the Adjudicator was alive to this issue as he stated in the Board’s Decision. In paragraph 5, he said:

“It should be pointed out that the Appellant was required to attend a Screening Interview. However, the Appellant was unable, due to sick leave, to avail himself of the opportunity to explain his case. As a result, he provided information by way of the QS (Information came from the DI Decision)”

Against the above background, the Adjudicator decided he would hear the case afresh. I consider that the Adjudicator had given good reasons for him to hear the case afresh. See Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018, §19.

24.Therefore, the procedural irregularity under section 37ZB of the Ordinance has been addressed and remedied by the Board. There are no other exceptional circumstances in the screening process.

25.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

26.Upon the applicant’s request, a hearing was fixed for him. He appealed before me.

27.The applicant told me that his affirmation was prepared by his friend. He further told me that he had answered all the questions in the Question Sheet. He understood the questions and all the answers given are true and correct. He would not complain that he was deprived of the opportunity of attending an interview.

28.He also said that when he attended before the Adjudicator, he was assisted by an interpreter. He had no problem in understanding the questions to him by the Adjudicator. The questions were similar to those put to him by the Director. But there were other questions as well. He had answers all the questions. Those answers are true and correct. He had no complaint about the language issue. He did not complain to his friend about the language.

29.He also had no problem with the contents of the Board’s Decision.

30.Grounds (1) and (2) would have been valid points for procedural irregularity, for which leave should be given. However, I consider that the Adjudicator had effectively dealt with this procedural irregularity. I see no unfairness in the screening process and the appeal hearing. The applicant has also confirmed that he would not complain that there had not been an interview for him. These grounds fail.

31.In view of the applicant’s confirmation that he had had a fair hearing before the Board and that he had made no compliant on the language issue, grounds (3) and (4) also fail.

CONCLUSION

32.In the circumstances, I find that there is nothing amiss in the hearing before the Adjudicator. The applicant’s proposed judicial review has no reasonable chance of success. I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.

Dated the 8^th day of February 2019

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