Mohammad Balli v. Torture Claims Appeal Board and Another

HCAL 807/2018

[2020] HKCFI 2127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 807 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:

1.  leave be granted for the Applicant to proceed with the application for leave to apply for Judicial Review; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of India who arrived in Hong Kong on 10 November 2013 with permission to remain as a visitor up to 24 November 2013 when he did not depart and instead overstayed, and on 10 December 2013 he surrendered to the Immigration Department and raised a non-refoulement 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.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Shankar, District Jalandhar, Punjab, India where he married his wife and raised a family of two children.

3.In 2010 he started a money-lending business in his home village, and in late 2012 with a view to expend his business he borrowed a loan from another money-lender in the village, with the loan to be repaid within 5 years and with interest charged on the principle sum payable per month.

4.However, his business turned bad in 2013, and by late 2013 he was having difficulties making the monthly interest payments to his creditor, and after receiving threats from his creditor and his followers, the Applicant felt it was no longer safe to remain in India, and so on 9 November 2013 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 30 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 24 November 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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his creditor or his men upon his return to India due to the absence of or low intensity and frequency of past ill-treatment from them, that his problem with his creditor was private monetary dispute 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 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 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

7.The Applicant then 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 7 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found such inconsistencies and contradictions in the Applicant’s evidence as to his claim that it did not accept that he had ever run any money-lending business in his home village or that he had borrowed any loan from another money-lender that it concluded that there is no real risk that he will be harmed or killed by the creditor or that he will face any proscribed forms of harm upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.   

9.On 8 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the Director and the Board failed to determine the Applicant’s case fully and fairly before rejecting his claim;

(2) that the Director rejected the Applicant’s claim simply for the sake of rejecting all non-refoulement claims in a very uniformed approach in arriving at the conclusion;

(3) that the Director failed to take into account of how powerful the Applicant’s enemy is when assessing the risk that he had faced in the past or will face in the future as low; and

(4) that it was unfair to deprive him of being read and translated the Board’s decision so that he could have a better understanding why his claim failed.  

10.Before his application could be dealt with by the court, the Applicant on 23 April 2019 filed an affirmation to request to withdraw his application, and on 20 May 2019 his application was withdrawn by Deputy High Court Judge Josiah Lam.

11.However, one year later on 29 June 2020 the Applicant issued a summons for leave to proceed with his application, and at the hearing he claimed that his problem in his home country had not been resolved and that his life would still be in danger.  Given the fact that his application has never been properly dealt with before its withdrawal, and to save time and costs, I allow him to proceed with his application and to consider the merits of his intended application.

12.His proposed grounds are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, while it is clear that the Director did properly consider that any risk allegedly from his creditor, no matter how powerful it may be, was a localized one without any official involvement that state/police protection would be available as well as reasonable internal relocation within India to wholly negate any risk from his creditor that his Ground (3) is simply not reasonably arguable, nor is it for his Ground (4) which cannot be accepted per se as a valid ground to challenge the Board’s decision.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 in their decisions 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.

14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 103 – 146 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

15.Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.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.

17.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 1^st day of September 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