Alam Irshad v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 650/2018

[2019] HKCFI 1354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 650 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 31-year-old national of India who last arrived in Hong Kong on 30 March 2009 with permission to remain as a visitor up to 13 April 2009 when he did not depart and instead overstayed and was arrested by police on 20 April 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan, and after his torture claim was rejected, he raised a non-refoulement claim for protection under the Unified Screening Mechanism (“USM”) on the same basis as before.  He was subsequently released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kolkata, West Bengal, India.  After leaving school he ran a trading business and travelled frequently to Hong Kong for purchasing goods.  

3.In March 2008 in order to expand his business he borrowed 1.1 million Indian rupees from a local money lender with monthly interest payment at 15% per annum on the principal loan until its full payment.

4.The applicant was able to keep up with the monthly interest payments until late 2008 when his two main customers had disappeared with his goods without payments, and as a result he experienced serious cash flow problem and failed to keep up with his monthly interest payments to his creditor.

5.One day in January 2009 the money-lender sent two of his men to the applicant’s home to press for payments, and when the applicant was unable to do so, they pushed and slapped him on the face with a warning that if he still failed to make any payment next month there would be serious consequences.

6.In February 2009 the money-lender again sent his men to the applicant’s home, and when the applicant was still unable to repay his loan, they proceeded to hit him with wooden sticks all over his body until he lost conscious.

7.After having received medical treatment for his bruises, he reported the assault to the police, but when the police failed to do anything about his complaint, the applicant felt that it was no longer safe to remain in India, and so in March 2009 he departed for Hong Kong where he subsequently overstayed and raised his torture claim, and after it was rejected by the Immigration Department, he sought non-refoulement protection under USM, for which he later completed a Supplementary Claim Form (“SCF”) on 4 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 24 January 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the remaining applicable grounds except his torture claim but included risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated 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 took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed or killed by his creditor upon his return to India due to the low intensity and frequency of past ill-treatment from his creditor, that the problem he had with his creditor was a private monetary dispute without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and 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 work experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

10.On 6 February 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but when he failed to attend the scheduled oral hearing on 31 January 2018 before the Board, and subsequently also failed to respond to the Board’s written request for his explanation as to his non-attendance at his oral hearing, the Board proceeded to deal with his appeal in his absence and on paper.  On 3 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the applicant’s claim of the loan from the money-lender and their terms doubtful and improbable, but that even if it was true that there would be state or police protection available to him, as well as reasonable internal relocation that it would not be unduly harsh for him to move safely to other parts of India such as Delhi that his claim failed under all applicable grounds.

12.On 17 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion in refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  procedural unfairness in that the adjudicator had acted in a procedurally unfair manner in dealing with his appeal;

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

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

(5)  procedural unfairness in that he was given the hearing bundle shortly before his appeal before the Board with the majority of the documents in English without translation thereby giving him insufficient time to prepare for his appeal before the Board; and

(6)  that the Board had significantly relied on the source of news not officially recognized or was simply hearsay or outdated which led to groundless speculation that it would be safe for him to return to his home country.  

13.These are however mostly just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or in what way was the decision unreasonable or irrational in the public law sense, or which COI relied on by the Board was not officially recognized or was hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.Whilst it is also not clear as to the applicant’s complaint that the adjudicator had acted procedurally unfair in dealing with his appeal, but if he were referring to not being given another oral hearing before the Board after failing to attend the originally listed hearing on 31 January 2018, the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: ST v Betty Kwan [2014] 4 HKLRD 277 at paragraph 26.

15.In the applicant’s case, given the fact that he failed to respond to the Board’s request for an explanation for his non-attendance at the listed hearing, the Board was entitled to conclude that it was of his choice or decision not to attend the hearing before proceeding to deal with his appeal in his absence.  I also note that the applicant has not identified what additional facts or grounds or further representations he would have put before the Board at an oral hearing that could advance his claim.  As such I do not find the Board’s decision not to schedule another oral hearing for the applicant amount to any procedural unfairness or breach of the high standard of fairness.

16.The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

17.Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, records of his screening interview and the Director’s decision should be well familiar to the applicant as they had earlier all been already made available to him when he still had legal representation from DLS, whilst his SCF was completed on his own instructions with legal assistance, and that in his appeal process he never raised any issue or requested the Board for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

18.The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.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.

20.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 2^nd day of August 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