Mohammad Mukhtar V.Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 816/2018 on BabelCite. This High Court CFI judgment was delivered on 18 March 2019.
1. The Applicant is a national of India. He is now aged 34 (DOB: 14 August 1984).
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HCAL816/2018 [2019] HKCFI 678 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 816 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of India. He is now aged 34 (DOB: 14 August 1984). 2.The Applicant claimed he would be harmed or killed by a man called Vishwa, who had asked him to join the All India Trinamool Congress (“TMC”). The Applicant refused. 3.The Applicant said he and his father were supporters of the Communist Party of India (Marxist) [“CPM”]. His father influenced a lot of people in the region to support the party. He died in 2008. The Applicant continued his father’s legacy. 4.Vishwa originally supported CPM but he switched to TMC in 2011. He became the assistant of Hakim, who was an influential TMC member. Vishwa soon became the Secretary of Counsellor of the Khidirpur Region. 5.In 2012, Vishwa asked the Applicant to join TMC. The Applicant again refused. 6.In early 2013, Vishwa came with ten odd people. He accused the Applicant of plotting against TMC. He yelled at the Applicant and fired a gun shot into the sky. The Applicant ran. He was chased by his enemies but managed to escape in the end. 7.The Applicant complained to the police. The police, however, sided with TMC and threatened to charge him with murder or rape if he insisted on complaining. 8.Vishwa and his men continued to harass the Applicant. They threatened to kill him. 9.The Applicant went to Hakim for assistance but to no avail. CPM could not help either. 10.In December 2014, Vishwa again asked the Applicant to join TMC. The Applicant refused. He was attacked and got knife wounds. 11.The Applicant complained to the police but they still ignored him and threatened to arrest him. 12.The Applicant’s mother was also threatened in the street by two men, who said they would kill the Applicant. 13.The Applicant moved to live in Bombay in January 2015. Vishwa and his men kept looking for him. 14.In August 2015, the Applicant thought his problem was over so he returned home. Three months later, Vishwa threatened to kill him again. 15.The Applicant thought further internal relocation was not viable because TMC was powerful. He decided to come to Hong Kong to seek asylum. [The Applicant had been in Hong Kong for business twice in 2013 and twice in 2014. ] 16.On 4 December 2015, the Applicant left India. He arrived in Hong Kong on the next day. He overstayed from 20 December 2015 and surrendered to the Immigration Department on 4 January 2016. He lodged a non-refoulement claim in August 2016. 17.In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 18.On 10 May 2018, the Applicant applied for leave for judicial review. Timeline 19.Things happened in this order: –
Respondent/Interested party 20.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis. 21.In Re Moshsin Ali, the Court of Appeal ruled “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] 22.In Form 86, the Applicant named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party. The Director's decision 23.In his decision dated 11 April 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's non-refoulement claim with respect to all the four applicable grounds. The Board's decision 24.The Applicant appealed to the Board. The Adjudicator interviewed him on 14 March 2018. 25.The Adjudicator accepted the Applicant was attacked and threatened by Vishwa and his men. He, however, found the Applicant had not been inflicted with ill-treatment to a minimum level of severity. [The Adjudicator mistakenly typed ‘maximum’ for the correct word of ‘minimum’ in line 2 of paragraph 128 in his report but he correctly referred to a ‘minimum’ level of severity in other places in his report: paragraph 31 (line 1), paragraph 79 (the 9th point) and paragraph 123(a).] The Adjudicator also found the complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There was no evidence of state instigation, consent or acquiescence. The Applicant had not made enough effort to complain to the India authorities. After studying relevant country-of-origin information ("COI"), the Adjudicator was satisfied reasonable state protection and internal relocation were available to the Applicant in any event. 26.The Applicant noted the Applicant had actually travelled in and out of India on a number of occasions between April 2012 and July 2014. He had been to Thailand and Hong Kong previously but he did not seek protection then. 27.The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 26 April 2018, he refused the Applicant's appeal with respect to all the four applicable grounds. Grounds of judicial review 28.The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant. 29.The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement. 30.The Applicant also complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay. Court hearing 31.The hearing took place on 20 August 2018. The Applicant was in person. A Hindi interpreter provided service in court. 32.The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to his grounds. 33.The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim. Discussion 34.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 35.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
36.The Applicant mentioned he was not legally represented when he appealed to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 11 April 2017. 37.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. 38.The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by interpreters when he was represented by the Duty Lawyer Service and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem. 39.The Applicant complained he received the appeal bundle only a few days before the Board hearing. 40.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. 41.The Applicant received the appeal bundle on 7 March 2018. That was 7 calendar days (or 6 working days) before the Board hearing, which was scheduled for 14 March 2018. The bundle was served on the Applicant in time. 42.The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous. 43.A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing. 44.The Applicant said he answered all the questions honestly in the Board hearing.[11] That would mean he knew well what was asked and how to answer. He was not confused. 45.There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay. 46.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 47.The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review. Dated the 18th day of March 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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 219/2018 [2018] HKCA 570, para 14(1). [8] CACV 284/2017 Re Paswan Shibu Lal, para 21. [9] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong. [10] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme. [11] The Applicant's affirmation, Point 8 on page 3. |
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