Case Document

100%Judiciary

HCAL1827/2018

[2019] HKCFI 2232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1827 of 2018

BETWEEN

	Hussain Ekbal	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	The Director of Immigration	Putative Interested Party

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 to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with The Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is an Indian national. He had come to Hong Kong in 2014 but was removed back to India on 17 April 2015 by way of a removal order. On 14 February 2016, he came to Hong Kong again illegally and was arrested by police. On 17 February 2016, he was referred to the Immigration Department for further investigation. By way of written signification on 25 April 2016 and 21 December 2017 respectively, he lodged a non-refoulement claim.

3.In his statements given to the Director and the Board, he said that if he returned to India, he would be harmed or killed by Mubarak Ali and Daulat because of his default on a loan payment. To put the facts briefly, the applicant alleged that he had borrowed two sums of money from Ali and Daulat respectively for his business of selling miscellaneous goods bought from China. He suffered a loss and was unable to repay the loans. They came to his house from time to time to harass him. They came with about 10-12 people and they pushed him and his wife. His son had once intervened and was beaten up. He finally came to Hong Kong.

The Director’s Decision

4.The Director considered his application in relation to 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.  risk of persecution by 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”).

5.By Notice of Decision dated 29 December 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was rejected for the reason that his claim was not substantiated.

The Board

6.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 31 July 2018.

7.By Decision dated 31 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s case. The applicant had admitted that he owned 7 properties in India and if he sold 3 of his properties, he might be able to settle his debts [84]. It therefore found that the applicant was trying to stay here in order to buy time to make the best deals, that is to say, to sell his properties at the best prices and to settle the debts with his creditors [85]. However, having considered his evidence, the Board found that the applicant was “not a witness of truth and that he fabricated claims in relation to outstanding loans to two men called Mubarak and Daulat….” [91]. It also found that the applicant was “a poor witness, including in relation to matters not central to his non-refoulement claim. [92]

9.In his Form 86, the applicant applied for leave for judicial review of the Board’s Decision.

10.In his affirmation in support of his application dated 22 August 2018, the applicant relied upon the following grounds:

(1)   the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2)   the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)   he was confused at the appeal hearing;

(4)   the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(5)   the applicant was not legally represented before the Board, which was in breach of procedural fairness;

(6)   the BOR 2 risk was assessed without another screening;

(7)   the BOR 2 risk letter sent by the Director for further information was sent to [her] old address; and

(8)   the Board had not given [her] any chance to provide information about [her] present situation in India.

DISCUSSION

11.The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer explained it to him. He understood the Board’s Decision as it was explained to him by his friend.

12.I explained the comments above to him and asked if he had any comments. He said that he did not have any comment.

13.It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.

14.The Board had also considered his admission of owning 7 properties in India. He had the ability to pay off his debts by selling some of his properties. He would not be subjected to any harm or threat.

15.Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

16.Grounds (4) is his opinion without any evidence in support of it.

17.The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

18.Ground (5) fails.

19.Grounds (6), (7) and (8) are irrelevant. They referred to a female whereas the applicant is a male. The applicant was unable to identify what additional information he would like the Board to consider the Board was entitled to assess his appeal on paper.

20.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

21.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

Dated the 19th day of September 2019

	(Thomas WAN)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 19/09/2019 Hussain Ekbal Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/09/2019 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11094/18/4/104/IN2152 The Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3877/17 (formerly RBCZ 11671/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)