Akhtar Shaikh Jawed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2657/2018 on BabelCite. This High Court CFI judgment was delivered on 9 June 2021.
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 19 November 2018 (the “Decision”).
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HCAL 2657/2018 [2021] HKCFI 1665 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2657 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 To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 19 November 2018 (the “Decision”). 2.The Applicant is an Indian national. He entered Hong Kong as a visitor on 25 May 2016 and overstayed since 1 June 2016. On 28 June 2016, he applied for non-refoulement protection claiming that, if refouled, he will be harmed or killed by a moneylender for being unable to repay the money he borrowed. 3.In due course, 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] grounds. By a Notice of the Decision dated 28 February 2018, the Director of Immigration (the “Director”) rejected his claims (the “Notice”). He appealed to the Board. His appeal was dismissed by the Board on 19 November 2018. The Applicant’s case 4.The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service. 5.In February 2015, the Applicant borrowed 15 Lakhs Rupees from a long standing friend who is a moneylender. He was only able to pay interest for the first year and thereafter he was unable to repay the capital because his business friend who owed him money failed to repay him. 6.Since March 2016, the moneylender and his men had been to his home to demand payment. On one occasion, the moneylender and his men beat him up in the street and threatened to kill him if he did not repay. On another occasion, they damaged his furniture and assaulted him and swore at his wife. The moneylender repeated his threat to kill him, if he failed to repay. The Applicant was terrified and fled to Hong Kong. Finding of the Board 7.The Board identified directly contradictory evidence between the Applicant’s evidence and the loan document relating to two matters concerning the terms of the loan which the Board found very difficult to accept if the Applicant were telling the truth. The Board did not accept his evidence that he had borrowed money from the moneylender or that the moneylender had sought to harm him and threatened to kill him if he did not repay. The Board was not satisfied that the Applicant was at any risk of harm from the moneylender or his associates should he return to India. On these findings, there was no factual basis to support his claim for non-refoulement protection under any of the four applicable grounds. Grounds for judicial review 8.The Applicant advanced four grounds of appeal in his Notice of application for leave to apply judicial review, ie Form 86:
Ground (1) – Wrong exercise of discretion 9.Under Ground (1), the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If he did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the notice and dismiss his appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. Ground (2) – Procedural unfairness 10.Under Ground (2), the Applicant accused the Adjudicator, ie the Board, of having acted in a procedurally unfair manner in dealing with his appeal. He did not give any particulars. It appears from the Form 86 that in essence he is complaining of lack of language assistance; that the appeal bundle was served on him late such that he did not have sufficient time to prepare his appeal; and that the Board relied on Country of Origin Information (“COI”) which were based on sources which were not officially recognized, or was hearsay or outdated. 11.In Re Karamjit Singh[5], the Court of First Instance held it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. That rationale was adopted by the Court of Appeal. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit. He has to find assistance himself from among his friends and his ethnic community. Indeed, the Applicant was able to file an adequately well written Form 86 in English himself. 12.Furthermore, the appeal bundle is basically made up of his NCF, the record of his screening interview, the Notice and the COI. He knew what was contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service. He knew what was contained in the record of screening interview which he attended with the assistance of interpreter and legal representation. The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary. Recognizing the limitation in their foreign language ability and the importance of their claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide them the convenience of interpretation at his fingertips. The Notice including the COI were issued by the Director on 28 February 2018. The hearing of the Board was held on 18 September 2018. In between, he had more than six months to seek assistance from within his circle and means. It lies ill in his mouth to say that for all these months he did not have sufficient time to prepare for his appeal. 13.The Applicant had the services of a qualified interpreter at the oral hearing before the Board to assist him in presenting his appeal. His complaint about lack of legal and language assistance is more apparent than real. 14.The COI relied on by the Director and the Board are all from credible and official sources, including Country Information and Guidance of India: Background information including actors of protection, and internal relocation issued by the United Kingdom Home Office published on February 2015; Country Report on Human Rights Practices for 2016 – India, published by the United States Department of State; The Times of India; and The World Factbook – India last updated on 22 February 2018, issued by United States Central Intelligence Agency. Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention his failure to provide any publication contradicting these COI. The Court considered this argument totally groundless. 15.There was no procedural unfairness. Ground (3) – Unreasonableness and Irrationality 16.Under Ground (3), the Applicant argued that the Decision of the Board was unreasonable or irrational in the public law sense or was the result of procedural errors or unfair. Again, he gave no particulars. The complaint of procedural unfairness was covered in Ground (2) and rejected by the Court. The complaint of unreasonableness and irrationality is in substance a challenge of the Board’s finding of facts. 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[6]. 17.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; the burden of proof and standard of proof; 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 Applicant’s claims for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault. Ground (4) – breach of greater care and duty owed to a self-represented claimant 18.Under Ground (4), the Applicant accused the Board of failing to meet the greater care and duty owed to a self-represented claimant. Again, he did not particularize the alleged failing of the Board. In the opinion of the court, the Board had fully considered the Applicant’s case; and he suffered no disadvantage for not being legally represented. Conclusion 19.For the above reasons, the Court concluded that there was nothing that shows 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 claim was not reasonable arguable. There was no realistic prospect of success in his intended judicial review. Accordingly, leave to apply for judicial review was refused. Dated the 9th day 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] CACV 78/2018; [2018] HKCA 460 [6] [2018] HKCA 524 at para 14(1) |
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