Ali Jabed v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1763/2018

[2020] HKCFI 725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1763 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

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 arrived in Hong Kong on 28 April 2008 as a visitor and was permitted to stay for 14 days. He overstayed and was arrested by police on 13 May 2008. On 15 May, 2008, he was referred to the Immigration Department for further investigation. He lodged his non-refoulement on 21 May 2008.

3.In his statements given to the Director and the Board, he said that if he returned to India, he would be killed by his maternal cousin partner, Sheikh Pintoo (“Pintoo”), because he had caused him to lose money in their joint venture of selling garment. He also alleged that he suffered from spine bifida and neurogenic bladder and is receiving medical treatment. If he is sent back to India, he may have difficulty in getting medication for his illness (“medical ground”).

4.He ran a garment business with his maternal cousin in 2006. Everything ran well until 2008 when one of his customers had cheated him a batch of goods without paying the full price for the goods. Pintoo was not happy about it and he asked for his invested money back from him. He was unable to pay the money. On two occasions in 2008, Pintoo brought with his brothers and other people armed with sticks to his house where they beat him up. He had suffered injuries of bruises and bleeding mouth. But he did not report to police. He fled to his sister’s house to avoid Pintoo. In April 2008, he left India for Hong Kong.

5.He had produced medical chit from Queen Elizabeth Hospital to prove that he is receiving medication and periodic treatment until 2012.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 2 December 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was rejected for the reason that his claim was unsubstantiated, having considered Country of Origin Information (“COI”) in relation to the facts and his medical ground.

The Board

8.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 26 May 2017.

9.By Decision dated 13 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s case carefully and analyzed the facts, applying the relevant legal principles in his consideration of the facts as alleged by the applicant. The Board found:

“53. … the Board has formed the view that the Appellant has fabricated claims in relation to the circumstances leading to the breakdown in the partnership between him and Pintoo, the circumstances following the breakdown in that partnership and the harm infliected by Pintoo and the threats made to the applicant by Pintoo. While the Board is mindful of the fact that it is quite possible for the centre piece of an Appellant’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness, this was not the case with the Appellant’s evidence….”

“57. … It does not accept the Pintoo has fought with the Appellant on the two occasions described in the Appellant’s NCF or elsewhere, not does it accept that Pintoo has threatened the Appellant through his mother or otherwise. The Board does not accept that Pintoo has any interest in subjecting the Appellant to proscribed harm as claimed by the Appellant.”

11.The Board had also considered the medical issue raised by the applicant. In particular, it had taken on board the authority of N v United Kingdom (Application No 26565/05) (unreported) 27 May 2008 at [44]:

“Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of article 3 in the Convention system, for the court to retain a degree of flexibility to prevent expulsion in very exceptional cases, article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.”^[1]

The Board further found:

“67. Even if the Appellant were to face an imminent threat to his health or well‑being as a result of him suffering from spine bifida and neurogenic bladder, which the Board does not accept, BOR 2, BOR 3 and the protection offered under the Immigration Ordinance in respect of torture risk and by the Refugee Convention in relation to persecution do not have the effect of requiring Hong Kong to guarantee free and unlimited healthcare to persons who do not otherwise have a right to stay in the territory. Only in exceptional circumstances might this right arise. This is not one of those cases.”

“70. The Board has considered the Appellant’s claims both individually and cumulatively, but in light of the findings above, the Board does not consider that he would face a real risk of suffering proscribed harm should he return to India in the reasonable foreseeable future…. that the Appellant’s case for non‑refoulement has not been made out.”

12.In his Form 86 dated 28 August 2018, the applicant applied for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application dated 28 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; and

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

DISCUSSION

The Board’s Decision

14.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 had explained to him. He understood the Board’s Decision because his friend had explained it to him.

15.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.

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

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

18.The applicant fails to show that he has a reasonable chance 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 judicial review. Accordingly, I dismiss his application.

Dated the 8^th day of May 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