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

HCAL 145/2018

[2019] HKCFI 1051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 145 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 36-year-old national of India who arrived in Hong Kong on 2 July 2007 with permission to remain as a visitor up to 16 July 2007 when he did not depart and instead overstayed and was arrested by police on 20 December 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  After his torture claim was rejected and dismissed respectively by the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”),he then lodged a non-refoulement claim for protection on the same basis under the Unified Screening Mechanism (“USM”), and released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kolkata, West Bengal, India.  After leaving school he ran a business trading in garments and electronic products in his hometown.

3.For expanding his business the applicant in 2007 borrowed 300,000 Indian rupees from a wealthy businessman in Kolkata with no deadline for repayment of the principal loan but with interest payment at 13% payable every month until the loan was paid off.

4.With the loan the applicant came to Hong Kong in July 2007 to purchase goods, but when his money was stolen and the police were unable to assist, and when he was told by his mother in Kolkata that his creditor was starting to make threats against him if he failed to repay his loan, he decided for his own safety not to return to India and therefore overstayed in Hong Kong, and upon his arrest by the police he raised his torture claim, and when that failed he lodged his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 9 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 16 February 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and 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”).

6.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his creditor upon his return to India due to the absence of past ill-treatment from his creditor, that there is no reliable evidence to suggest any real intention on the part of his creditor to seriously harm him other than to press him for repayment of his loan, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his creditor to locate him.

7.On 3 March 2017 the applicant lodged an appeal to the Torture Claims Appeal Board(“the Board”) against the Director’s decision, and for which he attended an oral hearing on 30 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the applicant’s evidence as to how he lost his money in Hong Kong and his subsequent report to the police inconsistent, vague and unpersuasive that it considered that he had fabricated his claim so as to be able to remain in Hong Kong,that in any event his problems with his creditor were localized to his home area in Kolkata that it would not be unduly harsh for him with education and work experience to relocate safely to other parts of India where it would be unlikely for his creditor after all these years to have the desire or resources to locate him.  

9.On 1 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  irrationality in failure to consider the concept of state acquiescence;

(2)  procedural impropriety in making insufficient inquiry;

(3)  failure to provide adequate reasons for its decision;

(4)  procedural impropriety/unfairness in failure to investigate into COI of India;

(5)  irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  irrationality in failure to consider a consistent system of human right violations;

(7)  irrationality in failure to consider if state protection exists in India;

(8)  irrationality in placing weight in irrelevant matters or on inaccurate or incorrect facts;

(9)  procedural impropriety for failure to call for psychological and/or psychiatric reports and/or evaluations;

(10)  procedural impropriety in applying the incorrect standard of proof with no reasonable basis for rejecting his credibility, failing to consider the extended form of state acquiescence, and failing to fully consider the COI reports in assessing risk to the applicant;

(11)  irregularity of the decision-maker being a different person than the interviewing officer; and

(12)  no proper basis for consideration of internal relocation.  

10.These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision,or in what way did the adjudicator fail to make proper inquiry or to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why was the concept of state acquiescence relevant or why was it necessary or relevant to call for psychological or psychiatric evaluations in his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any of them reasonably arguable for his intended challenge.

11.It is also factually incorrect to say that the Board did not consider the availability of state protection or the human rights situation in India, as it clearly did in paragraphs 47 – 63 of its decision.  In any event, given the private monetary nature of the applicant’s dispute with his creditor and in the absence of any evidence of official involvement, I fail to see how the consideration of human rights or state acquiescence in India would be relevant to or would assist or advance his case. 

12.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough analysis and reasoning set out in paragraphs 37 – 45 of its decision, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 16^th day of October 2019.

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