Md Nasim Akhtar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2434/2018

[2020] HKCFI 221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2434 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

The applicant

1.The applicant is an Indian national. He came to Hong Kong on 17 January 2016 as a visitor and was permitted to stay until 31 January 2016. He overstayed and surrendered himself to the Immigration Department on 1 February 2016. He lodged his non‑refoulement claim on 31 May 2016.

2.He claimed that if refouled, he would be killed by the money lender, Akhter Hussain (“AH”) who belonged to the ruling party the Trinamool Congress party.

3.In 2015, he borrowed money from AH to set up his business. AH introduced his friend called Parvez Alam (“Alam”) to be his partner. Alam cheated him. He was unable to repay the loan. In November 2015, AH sent some people to demand payment. He was unable to pay. They assaulted him with wooden sticks. He lost three teeth. At the end of November 2015, AH sent people to his home to look for him. He hid himself up. A few days later, they came again and told his daughter to tell him that he should not ask him to return the money Alam had cheated him. Upon his friend’s advice, he came to Hong Kong.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

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

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”).

5.By Notice of Decision dated 26 January 2018, (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 11 September 2018.

7.By Decision dated 22 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s evidence. It found that his evidence was not believable because of major discrepancies as to the central claim, with no explanation for those numerous and repeated inconsistencies and the version of his account being inherently implausible [50-52]. It finally came to the conclusion:

“54. Given the major problems with his evidence, I am not satisfied that the Appellant borrowed money as claimed, or that he was pursued by the person who lent the money; or that he was pursued and threatened by a business partner who swindled him, to prevent him from seeking repayment of the money owed by that partner. I am not satisfied that the Appellant is at risk of harm in India for the reasons claimed, or at any other reason arising from the credible evidence before me.”

Application for leave to apply for judicial review

9.He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

10.Attached to Form 86 is a bundle of 19-page written submission of a jumble of facts, irrelevant materials and grounds in support of his application, which I shall summarized below:

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

b. the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

c. he was confused at the appeal hearing;

d. the Adjudicator was unfair and had not given greater care to a self-represented claimant;

e. the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

f. the Adjudicator had applied the incorrect standard of proof;

g. the Adjudicator had considered irrelevant facts or had failed to considered facts which were in favour of his case;

h. the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

i. the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

j. the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

k. the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to India” Autumn 2011, which is favourable to his case;

l. the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

m. the Adjudicator was wrong in state protection in his country;

n. BOR 2 risk was assessed without screening;

o. the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and

p. the applicant was not legally represented before the Board, which was in breach of procedural fairness.

DISCUSSION

11.The applicant appeared before me. He confirmed that he was free to tell his stories before the Immigration officer and the Adjudicator. He could read English himself.

12.It is obvious that the Board had, through examination and cross-examination of evidence, found facts of the case and concluded that the factual basis of the case did not support his claim.

13.The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings.

14.The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

15.This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

16.I shall deal with his grounds.

17.He has confirmed that he had no problem with the hearing bundle for the appeal as he could read the bundle himself. The fact that the Director decided not to have another screening for BOR 2 risk is entirely at the Director’s discretion under the law. He has no ground to complain the Director’s discretion. All other grounds do not sustain as they are either opinions or he has no reasons to complain.

18.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

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

Dated the 20^th day of January 2020

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