Ahmad Jamil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2236/2018

[2021] HKCFI 1294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2236 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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.The Applicant is an Indian national.  He arrived Hong Kong lawfully on 3 December 2014.  He was permitted to stay as a visitor until 17 December 2014, but he over-stayed thereafter.  On 15 July 2015, he was arrested by the police.  Then he applied for a non-refoulement protection claiming that he will be harmed or killed by his Hindu neighbours, if returned to India because he is a Muslim and had slaughtered a cow in a Hindu region.

2.In due course, he attended a screening interview conducted by the Immigration Department and his non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. 

3.By a Notice of Decision dated 22 January 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims. On 2 February 2018, he lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director.  On 10 October 2018, the Board dismissed his appeal (the “Decision”).  On 15 October 2018, he applied for leave to apply for judicial review against the Board’s Decision, the Notice of the Director, his non-refoulement claim form and the record of screening interview.

4.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[5]. The non-refoulement claim form is a statement of the Applicant in support of his claim for protection.  The record of the screening interview is a record of what the Applicant was asked and his reply.  These documents are not decisions of an administrative body and are not susceptible to judicial review.  For the benefit of the Applicant, in considering his application the Court treated his complaints against the Director as directed at the Board also. 

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

6.The Applicant is a Muslim.  He is married and has two children.  His family and his mother are still living in India.  In February 2014, he and his family moved to Mominpore. Soon after the move, Sachin and Satish, who were owners of an entertainment club, visited him and demanded donation to their club.  He paid 30,000 Indian rupees.

7.He later came to know that Sachin and Satish are Hindus, Sachin is a member of the Bharatiya Janata Party (“BJP”) and leader for Mominpore, and Satish is a member of Rashtriya Swayamsevak Sangh (“RSS”) which is politically aligned to BJP.  Sachin and Satish are well known in Mominpore.  BJP was the ruling party in India at the time.

8.On 25 November 2014, the Applicant invited an Islamic priest to his home to conduct a Hakika, a Muslim ceremony to give thanks to god, as his business did well and his children had been healthy.  In conducting the ceremony, the Applicant slaughtered a cow to offer to god.

9.Then, Sachin, Satish and around 15 men (from BJP and RSS) armed with wooden sticks and iron rods confronted the Applicant for having slaughtered a cow.  They had an argument with Applicant and then attacked him for 20 to 30 minutes before the Applicant managed to flee.   He met his friend who took him to a hospital.  Then, he hid himself in the home of another friend in Kolkata.  While in the hiding, he learned from his wife that the police had sealed their home at Mominpore to inquire about the slaughter of the cow and the Applicant’s whereabouts with intent to arrest him.  His family moved back to their old home in Ekbalpore Lane.  However, the police kept enquiring from his wife for his whereabouts. 

10.Fearing that he will be harmed by Sachin and Satish and their associates; and that he would be charged and convicted with the offence of slaughtering a cow, the Applicant fled to Hong Kong.  He had no problem exiting India through proper channel.  He fears that if he returns to India he will be harmed and killed by Sachin and Satish and their associates and be convicted of the offence of slaughtering a cow.

The finding of the Board

11.The centrepiece of the Applicant’s case is that he had slaughtered a cow in his own home which provoked his Muslim neighbours who have strong connection with the ruling BJP party and that he was wanted by the police for the offence of slaughtering a cow.  Much of the Applicant’s case hinges on the legality or otherwise of the slaughter.  The Board has diligently studied credible COI, namely The Indian Express news service, relating to cow slaughtering in India.  The Board noted there have been attacks on Muslims partly based on consumption or suspected consumption of cow meat.  This supported the Applicant’s case. However, the Board also found out that there are no restrictions against cow slaughtering in West Bengal where the incident occurred.  As the Board noted, if cow slaughtering was illegal, the Applicant would not be offered protection in order to avoid a valid legal penalty; but if it was legal, the Applicant’s entire case would fall apart.

12.The Board found there were numerous inconsistencies in the Applicant’s evidence.  He was wavering on this important issue of illegality of cow slaughtering.  In his non-refoulement claim form, he denied cow slaughtering was illegal; but at the screening interview, he repeatedly said it was illegal, except on the Festival of Eid. At the hearing before the Board, he said it was illegal and admitted that he broke the law, 100%.  But that is contradicted by credible COI, at least insofar as West Bengal where the incident allegedly happened was concerned. The Board also found his case inherently impossible.  In the end, the Board did not find the Applicant a credible witness.  It did not accept he had slaughtered a cow in his home in November 2014 and/or that it led to abuse by Sachin and Satish and their associates; that the police questioned members of his family in relation to the alleged slaughter; that the police continued to visit his house in relation to the alleged slaughter; and that he was wanted by the police.

13.The Applicant bore the burden of proving his fear and risk albeit on a relatively low standard. However, having found the Applicant incredible and rejected his evidence, the Applicant has failed to discharge his burden of proof.  Having failed to prove his factual case of fear and risk, his claims for protection under any of the four applicable grounds have no foot to stand on. 

Grounds for judicial review

14.In his eleven-page affirmation filed in support of his application, the Applicant advanced a number of grounds.  The essence of his complaint is about the finding of facts by the Board, lack of language and legal assistance and that the Board’s reliance on the COI.  At the hearing, he put forward a further ground that his legal representative did not support him at the screening interview.

15.As for his first complaint, finding of facts is exclusively a matter for the Board as the tribunal of fact.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

16.As outlined above, the Board set out the applicable legal principles correctly and identified the issues.  It studied the relevant COI and reminded itself of the COI in support of the Applicant’s case.  The Board fully noted his case of being a Muslim of having allegedly committed an act which was affront to Hindus in a Hindu region.  It spent four pages analyzing the evidence and gave full reasons why it considered the Applicant incredible and his case inherently impossible.  The Applicant complained that the Board erred in stating that the risk of harm was not real and imminent.  That was a finding based on the Board being not satisfied with his evidence about having slaughtered a cow and the fact that it was not illegal to do so in West Bengal.  There is nothing to suggest that the Board’s Decision was the result of any errors of law or procedural unfairness or was unreasonable or irrational. On the basis of the evidence, it was entirely open to the Board to reach the Decision as it did.

17.The Applicant complained that he had no legal representation at the oral hearing before the Board and no language assistance thereafter.  In Re Zafar Muazam[7], Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], and Re Lopchan Subash[11], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  What is important is that his rights were not prejudiced for want of legal and language assistance.

18.The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting his case to the Director.  He also had the services of a qualified interpreter at the oral hearing before the Board.  The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  His case as presented by his legal representative were also before the Board.  He certainly knew what were in the non-refoulement claim form and the record of the screening interview.  The Notice of the Director was issued to him on 22 January 2018.  It was not until 5 September 2018 that the oral hearing was held.  The Notice is in English, though unfortunately, no translation was provided.  He requested the determination (presumably of the Director) to be read back to him.  He cannot expect these documents to be fully translated for him.  He had in between the issue of the Notice and the oral hearing more than seven months to seek assistance from among his own circle. He had been to Hong Kong many times and must know where to seek legal and language assistance.  Indeed, he had access to interpretation services as reflected in his affirmation and the Notice of application for leave to apply for Judicial Review filed in connection with this application which were very well written in English.  Also, he could have sought assistance from the interpreter at the oral hearing before the Board.  It lies ill in his mouth to attempt to overturn the result of the hearing on this ground. 

19.His complaint about lack of translation of the Decision is frivolous. The Decision was made after an oral hearing during which he had the benefit of interpretation services.  A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal.  He may challenge the Decision by judicial review.  In any event, he suffered no prejudice as he was able to make an application for leave to apply for leave to apply for judicial review and present an affirmation setting out grounds in support.

20.He complained about lack of legal representation to enable him to apply for leave to apply for judicial review.  Insofar as he can present the facts in support of his grounds for the application, the court will ensure that he will not be disadvantaged for want of legal representation.

21.Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  His complaint about lack of legal and language assistance is over-exaggerated.

22.As for his complaint about the Board’s failure to explain how to balance between conflicting COI (presumably in the context of state protection and internal relocation), that is a finding of facts for the Board.  The only COI relied on by the Board was about cow slaughtering.  That was from a credible source, namely The Indian Express updated on 8 October 2015.  That should be treated as authoritative and credible.  The Applicant has not suggested any COI to the contrary.  Indeed, his evidence was wavering.  On the evidence, it was open to the Board to accept that COI.  Having rejected the Applicant’s evidence about his factual case or his fear and risk, there was no need for the Board to consider relocation and state protection and related COI.  No question of balancing between conflicting COI arose in the Board’s Decision.

23.As for the new ground raised at the hearing, he asserted that his interpreter told him that his legal representative did not support him during the screening interview by agreeing with anything said by the immigration officer instead of supporting him.  He said his legal representative should do something favourable to him.  The Court asked if he complained to the Board at the oral hearing.  He said it was not necessary because his friend suggested him to go to the High Court.  His allegations were vague, unspecific and hearsay in nature.  Be that as it may, he agreed he was free to say anything before the Board.  Hence, whatever happened at the screening interview, even if true, were overtaken by the oral hearing before the Board, when the Applicant had the opportunity to present his case with the assistance of an interpreter. Nothing really material turned out from this last minute impromptu ground.

24.As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claim for non-refoulement protection under any of the four applicable grounds.  The Decision of the Board was utterly without fault. 

Conclusion

25.Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonable arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated the 6^th day of May 2021.

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] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 549

[6] [2018] HKCA 524 at para 14(1)

[7] CACV 2/2018, (unreported) 23 March 2018

[8] [2018] HKCA 14

[9] [2018] HKCA 15

[10] [2018] HKCA 17

[11] [2018] HKCA 37

[12] (2004) 7 HKCFAR 187

[13] HCAL 51 of 2007, (unreported) 5 December 2008