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

HCAL758/2017

[2018] HKCFI 1766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 758 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indian national who entered Hong Kong on 23 June 2014 and was permitted to remain for two days however, he overstayed and surrendered to the police on 4 August 2014.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 25 April 2016 and 3 July 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 4 August 2017.  The applicant filed a notice of application for leave to apply for judicial review on 12 October 2017 and requested an oral hearing which was set down on 27 March 2018.  The applicant appeared in person after his application for legal aid was refused.

2.The basis of his claim was if he were to return to India he would be harmed or killed by his creditor, Qadir for failing to repay his loan.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only need summarise it here.

3.The applicant was born in Kolkata, had eight years of education, is single and he borrowed money from Qadir to set up his own shop selling electronics goods in early 2012 but closed it at the end of 2013.

4.In January 2010 the applicant was involved in an altercation with a group of four young men when that group deliberately drove their motorbike into the bike driven by the applicant’s friend.  The applicant and two others were passengers at the time.  Both bikes fell to the ground and the applicant and his friends were then beaten badly; the applicant fell unconscious.  At some stage, a bike was driven over the applicant’s leg and his leg was broken.  He was admitted into a nursing home for 18 days.

5.Their grudge arose from the use of a public sitting area that both groups wanted to use.  One group would often ask the other group to leave and on occasions it would lead to abusive language and disputes that finally led to this attack in January 2010.  However, this was the only attack and it would appear to be an isolated incident.  The attack and the attackers had nothing to do with the loan he later borrowed to set up his business.

6.The applicant wanted to set up his own business but was unable to borrow enough from the banks so he approached a well-known wealthy moneylender called Qadir.  He was well-connected to a political party as well as the police in the applicant’s home area.  He lent the applicant Rs. 3 million and the terms of the agreement were that the applicant had to repay a monthly interest of Rs. 35,000 and a weekly repayment of Rs. 25,000.  The applicant did not have a copy of the loan agreement.  He opened his shop in early 2012 selling accessories for mobile phones and travelled to China himself to buy stock.

7.His business went well until May 2013 and he was earning around 350,000 Indian rupees per month on average.  By May 2013 he had already repaid Rs. 1.2 million to his creditor.  However, from May 2013 he noticed a downturn in business which may be a result of his allowing customers credit.  He was unable to chase up repayments which meant he suffered a loss. From that month he could not repay Qadir the monthly interest nor the weekly repayment.  In June 2013, Qadir paid him the first personal visit with two to three men to demand repayment and threatened to kill the applicant if he failed to repay the loan balance.

8.From June 2013 Qadir visited the applicant often and on each time the applicant promised to repay as soon as he could.  In November 2013, Qadir slapped the applicant’s face three times and threatened to kill him as well as cause trouble to his family.  The applicant reported this assault to the police and asked them to help him settle his problem with Qadir.  They did not charge Qadir with assault but instead threatened to imprison the applicant if he did not repay his debt.  After that, he was afraid he would be assaulted again so he closed his business at the end of 2013 and planned to leave India in around early June 2014.

9.He chose to fly to Hong Kong because he knew many people made a lot of money doing business in Hong Kong; he thought he could earn money to repay Qadir.  He had US$2,000 and hid himself to avoid Qadir until he left in June.  However, when he arrived in Hong Kong he lost his wallet with all his money but did not report this loss to the Hong Kong police because he did not know where to go to make this report.  He now had no means to make any money to repay Qadir and could not return to India.  He did not know how to seek protection in Hong Kong until some Indians later told him where to surrender in August 2014.

10.The Director and the adjudicator of the TCAB analysed the applicant’s claim under all applicable grounds;

(a)   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, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

11.The applicant had submitted documents from the clinic that proved he suffered injuries and proved when he suffered them but agreed that Qadir had nothing to do with that attack in 2010.

12.The Director assessed the applicant’s evidence and applied the law; he found the applicant was unsuccessful on his own facts in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  His dispute was a private financial loan issue where he owed money.  The creditor had made threats but never them carried out and slapped him once.  The Director found State protection was available to the applicant if he was at risk upon his return to India and internal relocation was a viable option.

13.The adjudicator conducted an oral hearing and treated it as a rehearing.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds.  Like the Director, he set out the applicant’s evidence.  The adjudicator however did consider the applicant’s credibility and found it damaging to his credibility that he did not make his claim as soon as practicable after arriving in Hong Kong.  He found it hard to believe it took him more than one month to find a police officer to report the loss of his money and to surrender to seek protection.  He had no reasonable explanation for why he made no claim for protection as soon as he arrived in Hong Kong which made his intention to come here to seek protection suspicious.

14.The adjudicator applied the applicant’s evidence to all four grounds and found he had not made out a case for non-refoulement protection.  On his own facts he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by Qadir or any of his men and that there was a real risk of torture by them if he returned to India.  There was no evidence of any involvement of a public official or person acting in an official capacity nor any evidence that their conduct was consented to or acquiesced in by any public official.  He was not a target of the State.  The adjudicator did consider whether there was any active State acquiescence or passive State acquiescence and found this is not a case where State authorities failed to exercise due diligence.

15.The adjudicator went on to refer to objective Country of Origin information (“COI”) and although there was corruption in the police in India but there was also evidence of the government taking steps to improve the conduct and effectiveness of the police.  He was satisfied that if the applicant was at any risk if he returned to India, there was available State protection. He did find on the totality of evidence there was no foreseeable real, personal and present risk of the applicant being tortured; his torture risk claim failed.

16.He also found that on the applicant’s own facts, he was unable to invoke the protection of BOR 2 or BOR 3.  To invoke BOR 3, the applicant had to prove that the ill-treatment described attains a minimum level of severity, which it does not according to even his own evidence.  The applicant could not show he faces a genuine and substantial risk of being subjected to ill-treatment if refouled.  He could not show any of his rights under BOR 2 would be violated either.

17.Lastly, the loan default was a private dispute and even the serious assault resulting in a broken leg arose from a grudge that cannot be said to be on account of race, religion, nationality, membership of a particular social group or political opinion.  Therefore, the applicant cannot show he is in fear of being subjected to persecution.  His persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

18.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the Director’s and adjudicator’s decision to be without fault. They analysed material, claims and evidence carefully.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

19.After a reading of the applicant’s affirmation, it would appear that the applicant has the following grounds against both the decision makers.  There are no particulars in his affirmation to support any grounds.

20.The first ground is that there was a failure by both to conduct sufficient enquiry into relevant COI, a failure to explain why there is a preference for particular COI over other COI and a cherry picking of COI.  With a lack of particulars from the applicant there is no merit in this ground particularly when both decision-makers clearly do refer to objective and relevant COI.

21.In the same ground/paragraph, the applicant accuses the Director of not conducting any interview before rejecting his BOR 2 risk.  In his decision, the Director notes the applicant had no further information to submit and there is no complaint in his appeal before the TCAB that he was deprived of a further interview by the Director.  Moreover, it is clearly not part of his case that his rights under BOR 2 were in danger of being violated.

22.In the second ground, both decision-makers are accused of failing to consider his other enemies who want to kill him and the fact he still cannot walk properly now.  Without further particulars, I can only assume he means those four who attacked him and his friends when he suffered a broken leg in 2010.  He himself has admitted they are not linked to his creditor and their grudge was also of a personal nature and did not extend beyond 2010.  There is no merit in this ground.

23.In the third ground the Director and adjudicator are said to have failed to consider the extended concept of State acquiescence.  This applicant did not rely on the extended concept of State acquiescence.  The applicant only made one report to his local police station but was unable to give any details such as the name, rank or post of the police officer in charge.  He did not report it to any higher authority in India.  The adjudicator did consider passive and active acquiescence.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.  There is no merit in this ground.

24.In the fourth ground the Director is accused of failing to give reasons for his finding that the applicant is unable to invoke the protection of BOR 3 but a reading of his decision shows otherwise; full reasons are given and I find no merit in this ground.  I am satisfied both the Director and the adjudicator gave sufficient reasons.

25.In the fifth ground the Director and adjudicator are said to have failed to consider the psychological impact of the threats on him and the applicant’s family.  This was not part of his case nor was there any obvious evidence that he suffered any psychological impact.  There is no merit in this ground.

26.I do not find any ground that shows there was an error of law by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

27.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 10^th day of August 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