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

HCAL 1300/2018

[2020] HKCFI 2698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1300 OF 2018

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 the applicant being present/ absent in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1975, is a national of India.  He arrived in Hong Kong on 6 February 2014 on the strength of his passport and was permitted to remain until 14 February 2014 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 26 May 2014, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [11] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his creditors, Feroz and Farid, for the loans of 750,000 and 600,000 India Rupees respectively that he borrowed in 2013 for his garment business.  His creditors are loan sharks and also members of the ruling party in West Bengal where he lived.  In December 2013, when he was unable to pay their debt, his creditors pressed for repayment and threatened to cut his limbs or even kill him if he could not repay within 3-4 days.  In January 2014, his creditors came with 10-11 men, armed with hockey and revolver etc. to attack him.  A man even pointed a revolver at his head.  He managed to escape and took a train to Mumbai and later moved to live in a village.  His wife was later arrested by the police for inquiry of his whereabouts.  To avoid the creditors, she later fled to live with her relatives elsewhere.

The Director’s decision

4.By notices of decision dated 27 January 2016 and 10 May 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low and found state protection as well as internal relocation as a reasonable option available to the applicant.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 18 May 2017.

6.By a decision dated 22 June 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [17-45] of its decision.  The essential reasons can be summarized as follows:

(1)  the applicant’s account of primary facts was accepted by the Board [17];

(2)  however, the events arose from a money dispute which is private in nature [20];

(3)  the injuries sustained by him were not so severe that required medical treatment in hospital, the purpose of the creditors was to pressurize him for settlement of loans [22];

(4)  the alleged ill treatment did not reach the level of minimum severity [23];

(5)  her wife was also subject to death threat but nothing untoward happened to her subsequently, which is a clear indication that the threat is an empty one [25];

(6)  adequate state protection is available to him [30].

8.Having considered all the circumstances relied on by the applicant, the Board found that the applicant would not be at real risk of any types of the proscribed harm if refouled.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 6 July 2018 for leave to apply for judicial review of the decision of the Board.

10.No request for oral hearing has been made.  The application is considered on the papers.

11.In the Form 86 or the affirmation in support, the applicant did not set out any grounds for the relief sought.  He only attached with the affirmation the decisions of the Director and the Board together with the hearing bundle before it.

Discussion

12.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

13.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the latter’s determination.

14.In the present case, the Board gave his account of primary facts and events the most favourable interpretation.  The Board did not take issue with the applicant’s asserted primary facts.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection.

15.As explained above, the assessments of risk of harm and availability of state protection are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16.The Form 86 and affirmation contained nothing to demonstrate why the Board was unfair or unreasonable in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17.The Board has taken a view on credibility most favourable to the applicant.

18.The applicant’s delay in making his claim for protection could have been viewed adversely on his credibility and was inconsistent with someone in genuine fear for his life and safety.

19.I agree with the Board that even if one gives his account the most favourable interpretation, the alleged past ill-treatment was of low intensity and frequency demonstrating no real risk of future harm.  

20.It cannot be established that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

21.The Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

22.There cannot be any criticism of the decisions of the Director and the Board which are entirely reasonable.

23.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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

24.For the reasons given, there is no realistic prospect of success in the applicant’s intended application.  Accordingly, I refuse to grant leave to apply for judicial review.

Dated 4 November 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