Saddam Husain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2782/2018

[2021] HKCFI 1615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2782 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:

1.  Leave granted for the Applicant to file the Application;

2.  Leave granted for the Applicant to amend the Notice of application for leave to apply for Judicial Review; and

3.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) dated 31 August 2018.  The Director had not made any decision dated 31 August 2018 regarding the Applicant.  It is obvious that the decision which the Applicant intended to seek judicial review should be the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) issued on that date (the “Decision”).  Accordingly, leave is granted to amend his application by substituting the Board for the Director of Immigration.

2.The application was six days late.  However, having regard to the short delay and the fact that at the material time the Applicant was in prison custody, extension of time was granted to him to apply.

3.The applicant is an Indian national.  He came to Hong Kong in June 2014.  He was arrested by the police on 6 July 2014 for having overstayed in Hong Kong.  He was referred to the Immigration Department.  On 8 July 2014, he applied for a non-refoulement protection.  In his interview with the immigration officer, he claimed that his fiancée committed suicide because of their personal dispute; and as a result her family assaulted him and threatened to kill him in revenge (the “First Report”).

4.On 27 January 2016, he filed his non-refoulement claim form dated 23 January 2016 (“NCF”) which was seemingly completed by his legal representative on his instruction and with assistance by an interpreter. In the NCF, he asserted that he would be killed by the family of his late girlfriend Alisha Khatoon (“Alisha”); and that the Indian police might take action against him on the basis of false cases framed up by Alisha’s family against him.  He also claimed that internal relocation is not feasible because of the extensive network of the Congress Party to which Alisha’s family is associated; and he did not have friends or relatives to take care of him. 

5.In due course, his non-refoulement claims were assessed on all three applicable grounds then available under the Uniform Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].

6.By a Notice of Decision dated 9 March 2016 (the “Notice”), the Director rejected his claims.  He appealed to the Board against the decision of the Director in the Notice. 

7.In the meantime, a further ground for protection became available under the USM, ie BOR 2 Risk[4] ground.  On 9 December 2016, the Immigration Department invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claims by 23 December 2016, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBORO”), in particular BOR 2 Risk ground, in case he had omitted any relevant facts before because of any misunderstanding on what “all applicable grounds” meant.  He was also notified that a further written decision of his non-refoulement claims on any other applicable grounds, taking into account any new facts submitted and all fact submitted previously will be made if he has not produced any relevant facts by the above date.  The Applicant did not respond.

8.Then, by a Notice of Further Decision dated 29 December 2016 (the “Further Notice”), the Director informed the Applicant that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBORO including the right to life under BOR 2 Risk ground. 

9.At the oral hearing before the Board on 14 June 2018, the Board considered the Applicant’s appeal against both the Notice and Further Notice.  The appeal was a rehearing.  The Board considered the Applicant’s claims on all four applicable grounds under the USM.  On 31 August 2018 the Board dismissed his appeal (the “Decision”).  On 23 November 2018, the Applicant applied for leave to apply for judicial review of the Decision of the Director dated 31 August 2018, which was amended to be the Decision of the Board of the same date.

10.The only ground for judicial review as stated by the Applicant in his application is that the Decision “was not carefully consideration”.  Attached to the application is a letter in which the Applicant stated his case and his fear. He did not file any specific grounds in his supporting affirmation.  Having reviewed all the papers, the Court was satisfied that the application may be determined on paper without an oral hearing.  On 18 March 2021, the Court invited the Applicant by letter to file written submissions within 14 days of the letter.  The Applicant did not respond.  Accordingly, the Court determined his application on paper.

The Applicant’s case

11.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 as supplemented and clarified by him in the record of the screening interview in the presence of his lawyer. 

12.The Applicant is a Muslim from a humble background.  He had eight years’ education.  He first met Alisha in 2007.  They developed a romantic relationship and planned to get married. Alisha was the only daughter of a prestigious family.  Her family members are politicians associated with the Congress Party.  They were involved in notorious cases in which the victims were never vindicated.  Alisha’s uncle, Imtiaz Ahmad (“Ahmad”) was a councillor in the Congress Party with 200 to 300 people working for him.

13.One day in 2014, the Applicant slapped Alisha in the course of a heated argument over some love affairs.  Then on 1 April 2014, the Applicant came to Hong Kong for sightseeing and to take a break from the argument with Alisha.  He did not contact anyone during the trip.  He returned to India on 5 April 2014.

14.On 9 April 2014, the Applicant was asked by Alisha’s mother to go to her home.  When he arrived, he became aware that Alisha had committed suicide about a week ago, ie on or about 2 April 2014.  Alisha’s father and paternal uncle blamed him and held him responsible for Alisha’s death because Alisha thought he was no longer interested in their marriage.  He explained that he was not in India when Alisha committed suicide and did not know of her death.  He was prevented from leaving.  He eventually managed to leave but his left arm was slashed and left elbow was dislocated. 

15.He fled to his paternal grandmother’s home.  He was treated by his cousin who was a doctor’s assistance.  He did not go to the hospital as he learnt from his paternal grandmother that Alisha’s family were looking for him. 

16.The Applicant was told that Alisha’s family had reported the matter to Iqbalpur Police Station that he was responsible for Alisha’s death.  He was summoned to the police station.  He went to the police station.  But on seeing Ahmad sitting outside the police station he was scared and left.  During his two months’ stay with his paternal grandmother, the Applicant was not attacked or troubled by Alisha’s family though they knew roughly his whereabouts.  Then he fled to Hong Kong. 

17.While in Hong Kong, the Applicant was told by his maternal grandmother that Ahmad and a few men had been to his house and vandalized it two to three times.  His maternal grandmother was also threatened that he would be killed.  She was urged by the police to disclose his whereabouts so that Alisha’s family could seek vengeance by killing him.

18.In a nutshell, the Applicant’s case is that Alisha’s family blamed him for Alisha’s death and wanted to kill him.  Her family is powerful and influential, being associated with the Congress Party.  Her uncle is a councillor of the party.  Her family is capable of carrying out the threat.  In addition, he was wanted by the police for some false claims made against him.

The finding of the Board

19.The Board identified multiple anomalies and inconsistencies in the Applicant’s evidence which led the Board to the conclusion that his claims are incredible, unreliable and/or implausible.    

20.The Board found it remarkable that much of the Applicant’s case was raised in the answer to Question 35 of the NCF which was completed by his lawyer on his instruction in 2016 and not in his First Report in 2014 when matters were fresh in his mind. 

21.Likewise, the Board found it strange that the Applicant did not mention his complaint against Alisha’s family in the NCF but raised it during the screening interview.  The Applicant’s explanation was that it was unrelated to the threat.  The Board found the explanation unsatisfactory as the complaint was obviously raised to support his fear of revenge by Alisha’s father.  The Board also doubted his evidence that as a teenager of 16 in 2007, the Applicant would have made a report to the authority in a matter related to his friend’s family against someone who turned out to be Alisha’s father.  The Applicant explained that at the time he did not know the complainee was Alisha’s father.  The Board considered his explanation did not sit well with his case that he had a romantic relationship with Alisha at the time and her home was just two minutes’ walk from his.   

22.The Board also found it incredible, given the culture and social hierarchy in India and the disparity between the Applicant’s and Alisha’s family, that Alisha’s father would have succumbed to Alisha’s pressure to agree to his only daughter’s marriage to the Applicant of low social status who had made a complaint against him and whom he did not know much.   

23.The Board found inconsistencies in his evidence given before the Board and in his NCF, for example, as to whether the place where he was residing was in the city or a remote village and whether he had a good relationship with Alisha’s family and the nature of the injury to his arm.

24.A glaring discrepancy in his evidence is that the Applicant said he only learned four days after his return to India that Alisha had committed suicide, ie on or about 2 April 2014; but on the other hand, he said four days after her death, he was told by a police officer that the officer could not help him.  This is a marked discrepancy which goes to credibility and reliability of his claim.

25.The Board assessed the Applicant’s risk of ill-treatment by Alisha’s family to be low as the Congress Party to which the family and Ahmad are affiliated is not the ruling party and their influence might at best be localised to where they are residing and furthermore four years has lapsed since the Applicant left India.  The Board therefore concluded that the Applicant has failed to establish even to the relatively low standard that he would face any risk of harm in the future if he is refouled to India.  On that finding, there is no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.

Disposition

26.The Applicant disagreed with the Board’s assessment of his risk of harm.  The intended judicial review is a challenge of the finding of facts by the Board.   The role of the court in judicial review is not to re-assess the non-refoulement claims 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[5].

27.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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success. 

Conclusion

28.For the above reasons, leave was granted for the Applicant to amend the application by substituting the Board for the Director and to file the application out of time; but the amended application for leave to apply for judicial review is refused.

Dated the 4^thday of June 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 524 at para 14(1)