Mohammed Faheem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 707/2017

[2018] HKCFI 1217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 707 of 2017

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 the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong legally on 7 March 2014, from India and thereafter overstayed.  He surrendered to the Immigration Department on 22 September 2014.  He was released pending investigation and later upon recognisance on 7 October 2014.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 29 October, 19 November 2014 and 28 April 2015.  His NRF claim form was submitted on 10 April 2017.

2.The Applicant attended a screening interview on 28 April 2017.  The Director of Immigration (“the Director”) dismissed his claim under all heads by Notice of Decision (“the Decision”) on 8 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr Fraser Syme, heard him on 19 September.  The Adjudicator considered his appeal on all applicable grounds and confirmed the Director’s Decision on 29 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 3 October 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is an Indian national and Sunni Muslim.  He was born on 25 November 1989 in Khiddirpore, West Bengal, is 28 years of age and is single.  He studied up to Class 10 and worked as a mobile phone salesman thereafter.  In 2012, the Applicant started his own business with a partner.  In 2013, the Applicant obtained a business loan from a man called “Mudasir”.  The loan was for R2,000,000 and repayable at 5% interest per month.  No collateral was required and there was no repayment date for the capital amount.  The business did not thrive and was closed down in around October 2013.  By January 2014, the Applicant was no longer able to service the interest payments on the loan.  Mudasir demanded repayment and gave the Applicant one week to resolve it.  A week later, Mudasir approached the Applicant accompanied by several men and asked for repayment.  The Applicant asked for more time and this was granted but Mudasir threatened him harm if he did not repay the loan.  Shortly thereafter, he was approached once again and this time he was assaulted by being slapped in the face.  Mudasir threatened him that something bad would happen to him if he did not pay.  Near the end of February 2014, Mudasir made further threats and the Applicant was assaulted once more.  This time, Mudasir threatened to kill the Applicant.  None of these incidents required medical treatment.  None of them was reported to the police. The Applicant’s family were not threatened.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.

ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc must reach a minimum level of severity.

iii. 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”).  Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had first established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears as a result of that factual basis.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish the factual basis and that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

7.The Director analysed the Applicant’s claim on all applicable grounds as outlined above.  He considered a wide range of background documentary evidence, not personal to the Applicant but applicable nevertheless to his complaint.  The Applicant was given an opportunity to address the Director’s misgivings about his version of events and the possible risk posed by Mudasir.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, which he was unable to do as the loan documentation was in India.  In coming to his decision to reject his claim under the various heads, the Director acted reasonably and explained his Decision on the merits in a clear and intelligible manner.  It is evident from his reasoning that the Director did not believe the version of events relied upon by the Applicant.  The Director criticised his lack business acumen and plausibility.  Whilst seeking to give the Applicant the benefit of the doubt, he found his story incoherent and inconsistent on material and significant matters. It was a private matter with no evidence of state involvement.  More importantly, on the Applicant’s own account, had at worst received a slapped face and there was no evidence to suggest such action would escalate if he were to be returned to India.

Decision of the Adjudicator

8.The Adjudicator arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  He clearly did not believe any part of the evidence of the Applicant.  I am unable to say how long the hearing took (I note he says he questioned the Applicant at length[1]) nor whether the Applicant had the benefit of an interpreter, which I presume he did.  The Applicant fell at the first hurdle.  As the Adjudicator found him wholly lacking in credibility, the evidence which should have been in support of his claim fell away completely and did not fall to be considered.  I note he referred to the Applicant’s case as “vague, inconsistent and implausible evidence and his non persuasive explanations”.  Thereafter, the Adjudicator assessed the claim “on the credible evidence before me” which he did not define and which I can only assume was no evidence at all.

Leave to apply for judicial review

9.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.Despite the fact that the Applicant failed to submit any grounds of review, I have considered the papers, grounds and submissions carefully.  The Applicant’s case on the face of it has many significant weaknesses quite apart from the issue of veracity.  This was a private dispute in which the Applicant allegedly failed to repay a considerable debt and there was at no time any suggestion of improper intervention by any state controlled organisation and there was no evidence in support of the claim save for the Applicant’s oral testimony.  Neither the Director nor the Adjudicator believed that the Applicant operated a business or borrowed the money alleged to be the subject of the loan because the Applicant had little or no idea as to the basis for securing the original loan or how he was to expand the business as he alleged.  The Director and Adjudicator explained in detail why they had not believed the Applicant on this issue.  It was fatal to his case.

12.The Director went on to give the Applicant the benefit of the doubt and considered all aspects of his claim and gave reasons for rejection.  The Adjudicator did not.  Having found the Applicant to be wholly incredible, he did not feel it necessary to give the Applicant the benefit of the doubt and nevertheless consider the claim as if he had found otherwise.  Whilst the latter course may have been an approach which would have left the Applicant in no doubt that his claim was without merit, there is no requirement for the Adjudicator to do so on these facts and he did not act unreasonably in so doing.  He fully explained the course he took and his reasoning.  Nor did he act in a procedurally unfair manner as he had given the Applicant every opportunity to address the issues of concern.

13.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review.  Even if, the Applicant were able to show that the Adjudicator should have given him the benefit of the doubt and gone on to consider his claim under all heads, there is no doubt that his claim, at its highest, had no prospect of success and, as such, there would be no realistic prospect of success if he were to be granted leave now.  I therefore refuse leave for judicial review.

Dated 27^th day of July 2018.

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