Ahmed Ibrar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 898/2018 on BabelCite. This High Court CFI judgment was delivered on 14 June 2019.
1. The Applicant is a national of India. He is now aged 31 (DOB: 16 June 1987).
Cited by 3 cases · Cites 5 cases
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HCAL898/2018 [2019] HKCFI 1407 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 898 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 31 (DOB: 16 June 1987). 2.The Applicant claimed he would be harmed or killed by his enemies in India. 3.The Applicant was a businessman. He had two partners called Imran and Sunny. The Applicant was responsible for buying goods from overseas. His two partners would sell the goods in India. 4.In April 2008, the Applicant came to Hong Kong. He lost the money for buying goods. He dared not tell his partners. He overstayed in Hong Kong and lodged a torture claim in December 2008. 5.Sunny persuaded the Applicant to go back to India. The Applicant then withdrew his torture claim. He was repatriated to India in December 2009. 6.Shortly after his return, the Applicant went to Thailand to buy goods. This time, he damaged some goods. Sunny asked him to pay for the damage which was over 40,000 rupees. The Applicant first borrowed 20,000 rupees from a friend called Nazeem to give to Sunny. The remainder was to be deducted from the Applicant’s salary by instalments. 7.In 2011, the Applicant asked Sunny if the latter would deduct less money from his salary. The two got into an argument. Sunny assaulted the Applicant. 8.The Applicant continued to work with his partners. In 2012, Sunny asked the Applicant to go to Thailand for business. The Applicant refused. Sunny was upset. He brought several men to confront the Applicant. Sunny asked the Applicant to pay up what he owed him or he must go to Thailand. The Applicant refused. He was assaulted. Sunny told the Applicant that he would be in more troubles if he complained to the police. 9.In 2013, Sunny came again with some people to ask the Applicant to pay up or he would ‘sell his kidneys’. The Applicant was assaulted. Some passers-by came to his recuse. 10.Later, Sunny and Imran asked the Applicant to accompany some ‘carriers’ to Thailand. The carriers would help to bring goods back to India with the Applicant. Those ‘carriers’ would also go to Hong Kong for sight-seeing, so they had to pay 3,000 rupees each for the trip. The Applicant collected the money from them and gave it to Sunny. The trip was later cancelled. Sunny refused to give the money back. The carriers then chased the Applicant for refund. 11.In late 2013, Sunny brought some men to ask the Applicant for repayment. They assaulted the Applicant. Sunny warned the Applicant not to complain to the police or he would get into trouble. 12.In January 2014, a customer short paid the Applicant 50,000 rupees. Sunny accused the Applicant of embezzlement. He gave the Applicant three days to pay up or he would maim or kill the Applicant. 13.The Applicant said he owed Sunny and Imran about 3.5 million rupees in total. He also owed the ‘carriers’ 3,000 rupees each. 14.In fear, the Applicant left India for Hong Kong in January 2014. 15.Before the Applicant left India, he had a row with his wife’s uncle Raja. Raja assaulted him. 16.The Applicant was divorced by his wife in 2016. He had made no contact with her since then. 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 23 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 complaint 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 31 August 2017, the Director did not accept there was 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 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 25 January 2018. 25.The Adjudicator said he could not dismiss the Applicant's evidence comfortably. However, even on the Applicant's account of events the Adjudicator considered the Applicant's enemies were only private individuals. There was no state involvement of any kind. The complained situation was not on account of any Convention reasons, namely, race, religion, nationality, political opinion or membership of a particular social group. The Adjudicator did not accept Sunny and Imran had connection with the law enforcement agencies in India. He did not accept Sunny, Imran and the ‘carriers’ could go after the Applicant throughout India. The Adjudicator considered reasonable state protection and internal relocation were available to the Applicant. 26.The Adjudicator was not satisfied there was any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 16 May 2018, he refused the Applicant's appeal with respect to all the four applicable grounds. Grounds of judicial review 27.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. 28.The Applicant also complained he was given the appeal bundle only several days before the appeal 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 during the appeal hearing. He complained the Adjudicator failed to make appropriate arrangement. 29.The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay. Court hearing 30.The hearing took place on 4 September 2018. The Applicant was in person. A Hindi interpreter provided service in court. 31.The Applicant said his present wife (an Indonesian) and a friend (an Indian) helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. He had nothing to add. 32.The Applicant said he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim. Discussion 33.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 34.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: –
35.The Applicant complained there was a lack of legal representation after the Director's decision dated 31 August 2017. 36.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. 37.The Applicant raised his language problem. In the current application, the Applicant was helped by his present wife and a friend to prepare Form 86 and the affirmation. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem. 38.The Applicant complained he received the appeal bundle only several days before the Board hearing. 39.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. 40.The Applicant said he received appeal bundle on 18 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time. 41.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. 42.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. 43.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. 44.There was no evidence that the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay. 45.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 46.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 14th day of June 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 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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