Seth Nizam v. Torture Claims Appeal Board and Another

HCAL 1017/2018

[2021] HKCFI 1338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 1017 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 47-year-old national of India who last arrived in Hong Kong on 11 April 2008 with permission to remain as a visitor up to 9 May 2008 when he did not depart but instead overstayed and was arrested by the police on 27 May 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 then sought non-refoulement protection on the same basis. He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Khidderpore, Kolkata, India. After leaving school he worked as a waiter, and in 2003 he started to run a trading business in electronics and garment in his home district, later joined by a partner in 2006.

3.In 2007, to finance the purchase of goods for his business, the Applicant borrowed a loan from a local load shark with an interest payable each month until full repayment of the loan.

4.However, after receiving payment from the Applicant, his supplier disappeared without supplying any goods to the Applicant, and as a result the Applicant was unable to keep his business going, and by early 2008 he was unable to make any loan repayments to the loan shark. Fearing that he would be harmed or killed for failing to repay his loan, the Applicant therefore departed India on 11 April 2008 for Hong Kong where he subsequently overstayed, and upon his arrest by the police, he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 30 October 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 1 December 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds except torture risk including risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor or his men upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between the Applicant and his creditor without any official involvement that state/police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows 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 working experience to move to other areas 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. 

7.On 6 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 8 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 21 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s evidence as to the core of his alleged business and subsequent loan from a loan shark inconsistent, vague and significantly different between those given to the Director and to the Board that it concluded that the Applicant had fabricated his claim of fear of harm from his creditor and that it was not satisfied that there is any real chance or risk that he will suffer any harm upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

9.On 4 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Adjudicator failed to meet the high standard of fairness required of the tribunal in failing to conduct a fair oral hearing with legal representation for the Applicant in his appeal hearing before the Board;

(2)  That the Adjudicator took account of irrelevant considerations in assessing the Applicant’s claim in rendering a refusal decision;

(3)  That the Adjudicator gave no proper reasons for the decision after providing a very comprehensive and considered analysis of the information and issues and correctly setting out the relevant rules and principles applied in determining the Applicant’s claim but did not set out her analysis of the two matters advanced by the Applicant in support of his claim before concluding that the Applicant’s experience did not amount to torture and that there were no substantial grounds that he would be subjected to torture if returned to his home country;

(4)  That the Adjudicator had not taken all the COI materials from the hearing bundle in rejecting the Applicant’s claim that there was no genuine threat in his claim; and

(5)  That the Adjudicator and the interpreter had done a shoddy job, intentionally rude, inconsiderate and failed miserably, and that the interpreter also interpreted wrongly twice during the oral hearing which led the Adjudicator to conclude that the Applicant’s claim was inconsistent and vague.   

10.For his complaint in Ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

11.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12.As for his complaints in the remaining 4 grounds, they all appear to me just broad and vague assertions of the Applicant without proper details or particulars in support, or as to what irrelevant considerations were taken by the Director or the Board or what COI which they had failed to consider in the assessment of his claim, or what mistakes were made by the interpreter in interpreting his evidence during his appeal hearing before the Board, and that none of which the Applicant has provided any evidence in support, while his complaints under Ground (3) are confusing and contradictory and appear to have been copied from some pro forma statement commonly used in this type of applications but not relevant to the facts of his own case at all. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any of his grounds reasonably arguable for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.The fact is that it has been established by the Director in his decisions 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 parts of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

15.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.

16.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 11^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