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

HCAL 2390/2018

[2020] HKCFI 1575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2390 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

The applicant

1.The applicant is an Indian national. He came to Hong Kong on 12 May 2014 as a visitor and was allowed to stay until 14 May 2014. He overstayed and was arrested by police on 2 September 2014. He was referred to the Immigration Department on 3 September 2014. He was detained in the Castle Peak Bay Immigration Centre. He lodged a non‑refoulement claim on 4 September 2014.

2.He claimed that if refouled, he would be killed by a loan shark.He had borrowed money from the loan shark to run his business with another person called Raja. Two years on, Raja then took away the money and goods and disappeared. He was unable to repay the loan. the loan shark and his people had pressed him for repayment of the loans. The loan shark was closely associated with a Trinamool Congress leader in the locality called Biswajit Lala, who was suspected to have committed a murder. He was interviews by a local TV channel. He said that Biswajit Lala was the murderer. The loan shark was angry at him. Together with other people, Biswajit Lala had gone to his home where they slapped his cheek and punched his ribs. They also damaged his properties inside the premises. He went to see the doctor and recovered after 5 or 6 days. He considered himself to be in a precarious position and decided to come to Hong Kong.

The Director’s Decision

3.The Director considered his application in relation to the following risks:

a.torture risk under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

4.By Notice of Decision dated 3 July 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

5.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 27 August 2018.

6.By Decision dated 22 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

7.The Board considered the applicant’s evidence and found that there was not a real risk that the applicant would suffer from harm of any kind for any of the reasons he had claimed, or for any other reason, now or in the foreseeable future if he returned to India. The Board made the findings below [71-87].

a.It accepted that the applicant had run a business with Raja, who had taken the money and the goods and disappeared.

b.The applicant had borrowed money from the loan shark and he was unable repay. The loan shark demanded payment of the loan.

c.But it did not accept that the loan shark had any intention of causing him any harm or killing him.

d.He had had an interview by the local TV channel and he had made some comments about Biswajit Lala of having committed the murder. But it was only speculation and subsequently the real murdered was convicted. Therefore, it did not accept that he would be harmed because he had made such speculative comments.

Application for leave to apply for judicial review

8.He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

9.In his affirmation in support of his application, he relied upon the grounds below:

1.the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

2.the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

3.he was confused at the appeal hearing;

4.the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”);

5.the Adjudicator had relied upon hearsay information and outdated material in relation to COI and he made groundless speculations that it was safe for him to return to India.

DISCUSSION

10.The applicant appeared before me. He confirmed that he was free to speak before the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision and his friend had explained the hearing bundle and the Board’s Decision to him.

11.The Court of Appeal in Re Magar Surendra [2019] HKCA 667, 13 June 2019 held that it is irrelevant if the applicant does not understand the hearing bundle or he did not have language assistance.

12.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

13.I shall deal with his grounds.

14.He has confirmed that he had no problem with the hearing bundle for the appeal. Grounds (1) to (3) fail.

15.Grounds (4) and (5) are his opinions without any evidence in support of them.

16.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

17.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 16^th day of July 2020

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