Hossain Sarfaraj v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL769/2017

[2018] HKCFI 1767

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 769 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 last entered Hong Kong on 6 January 2015 and was permitted to remain until 20 January 2015.  He left for Mainland China on 20 January 2015 only to return on the same day so as to extend his stay in Hong Kong.  He was permitted to remain until 3 February 2015 but overstayed.  On 6 February 2015 he surrendered to the Immigration Department.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 16 May 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 3 October 2017.  He then filed a notice of application of leave to apply for judicial review on 16 October 2017 and requested an oral hearing which was set down for 23 March 2018.  The applicant appeared in person after his application for legal aid was refused on 13 February 2018.

2.The basis of his claim was that he would be harmed or even killed if he returned to India by his business partner Munna who was closely connected to the All India Trinamool Congress party (“TMC”).  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 to summarise it here.

3.The applicant operated his own import and export business from 2002 from a shop in Kolkata which required him to travel frequently between India, China and Hong Kong purchasing goods.  It was a profitable business but he wanted to expand it in 2012 by taking on a business partner who could operate the business in Kolkata whilst he travelled abroad and also invest more capital.  Munna was interested and invested 20 lakhs; they agreed to split the profit 40% to Munna and 60% to the applicant.  The applicant had known Munna for about five years and he had previously been a frequent customer in his shop.  Munna became responsible for managing the accounts and operating the shop.  They did not make their partnership and investment official because it would attract taxation, require complicated paperwork and filing with government departments.

4.Their partnership flourished and expanded with profits increasing significantly throughout 2013. By early 2014 they expanded their business from retail to wholesale but by mid-2014 suddenly Munna stopped transferring money to the applicant to purchase goods.  He abruptly told the applicant that the business had been losing money every month and they were in debt which made no sense to the applicant. Munna closed the shop and prevented the applicant from entering it; he became uncooperative by refusing to give the applicant contact details of their retailers, wholesalers and merchants.

5.The applicant soon found out through a friend that Munna was in fact, a dangerous person with close political connections to the TMC and the police.  He had given credit to retailers and wholesalers and pocketed money they had given him.  He wanted to take over the applicant’s business and be the sole proprietor.  When the applicant confronted Munna and demanded an account of the monies, it was in fact, Munna who demanded a return of his investment and profit.  A fight broke out when Munna threatened to kill the applicant if he did not return his investment.  The applicant did not report the fight or the threat to the police because of the Munna’s relationship with the police and the TMC.

6.In late 2014, about two weeks after their fight, Munna came to the applicant’s home and threatened him again when demanding a return of his investment.  They fought again. The applicant was frightened after this incident and fled to his aunt’s home and hid there for about two weeks before deciding to leave India and travel to Hong Kong to seek protection.  Even after he left India, Munna has continued to look for him and told his family that he will kill the applicant if he returns to India.  The applicant has said that he cannot relocate elsewhere because with the assistance of the TMC network, Munna will be able to locate him anywhere. In any event, he knows nobody outside of Kolkata.

7.The adjudicator, as did the Director, 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”).

8.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant elected to answer questions and give evidence.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  She set out the applicant’s evidence and her analysis of it.  The applicant confirmed his business ran from 2002 yet was unable to provide a single document to show that his import and export business existed.  There was not one registration, bank document or any proof of ownership.  He could not provide a single document to show that Munna had invested a substantial amount of money into his business and that there was an agreement of a 40/60 profit share.

9.The adjudicator accepted that tax evasion was a way of life in India but for a business that was generating apparently significant profits and for the applicant who was travelling frequently and buying stock regularly there must have been documents that existed; some bank records or invoices of some kind to prove that there was a partnership and a business.  Such a total lack of documentation led the adjudicator to suspect the applicant’s claim was a fabrication.

10.Other discrepancies in his evidence supported her suspicion and she highlighted those discrepancies in her decision; such as where he was hiding in India after his dispute with Munna and how long he was hiding.  The adjudicator recognised that memory can be affected by the passage of time but she found the applicant showed a tendency to alter and tailor his evidence in response to the inconsistencies.  She had doubts that he was a genuine claimant.

11.She however went on to give him the benefit of the doubt and accepted that they were business partners and had one physical dispute in 2014 that resulted in minor injuries.  She found no evidence to support the applicant’s fear that Munna would be able to locate him anywhere in India.  This was supported by the fact the applicant was able to avoid him when he lived with his aunt before leaving India without any confrontation with Munna.  There was no evidence to show that he continued to seek out the applicant after that dispute.  She also found no evidence that Munna was politically connected to TMC or the police that would give him the means or ability to locate the applicant anywhere in India.  In any event, the TMC was only in power in West Bengal.

12.The adjudicator applied her findings to the four applicable grounds and the law and found that the applicant had failed to establish a claim under any ground.  There was no real risk the applicant would face torture as defined and set out in section 37U of the Immigration Ordinance; the torture risk claim failed.  There was no evidence of any real risk to the applicant’s right to life or that he would face the prospect of torture or CIDTP; his BOR 2 and BOR 3 risk claim failed.  Lastly, he could not establish she had a well-founded fear of being persecuted for reasons set out in the Refugee Convention if he was refouled to India; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

13.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator analysed the material, claim as well as the evidence and validated her findings.  The applicant’s complaints against her and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

14.In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  However, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that were in the appeal bundle.  Moreover, he made this application and affirmation in English which casts further doubt on this ground.  I find no merit in this ground.

15.In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Recently the Court of Appeal in Re Lakhwinder Singh (2018) HKCA 246 at (13) said that.

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding; she had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding.  There is no merit in this ground.

16.The third ground is a complaint that the adjudicator relied on COI information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  I find no merit in this ground.

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

18.In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17. 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