Mohammed Asgar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 1439/2018

[2020] HKCFI 3077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1439 OF 2018

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 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 decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1973, is a national of India.  He arrived in Hong Kong on 25 April 2013 as a visitor with his passport.  He overstayed and remained in Hong Kong unlawfully.  On 28 May 2013, he surrendered himself to the Immigration Department and lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“torture claim”).  His torture claim was rejected by the Director on 6 February 2014 under Part VIIC of the Immigration Ordinance, Cap 115.  On 6 November 2017, he again made his non-refoulement claim.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [26-33] 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 a money lender named Sheikh because of his failure to repay the money that he owed him.  He claimed that in about 2008 or 2009, he borrowed US$30,000 from his friend, Sheikh, to start his business.  The business was at a loss and he could not repay the loan near the end of 2012.  Sheikh and his men forcefully took him to a place to assault him and he believed they tried to murder him.  He managed to escape and fled to live at another area.  However, Sheikh continued to come to his house looking for him.  For fear of his safety, he left India for Hong Kong on 24 April 2013.

The Director’s Decision

4.A Notice to Persons Making a Non-refoulement Claim was served on him on 9 June 2017 in which he was informed that the Director’s previous refusal decision regarding his torture claim would not be reviewed under the Unified Screening Mechanism (“USM”).  His claim for non-refoulement protection would therefore be assessed by the Director on all applicable grounds, namely, BOR 2 risk[1], BOR 3 risk[2] and risk of persecution[3] other than risk of torture under Part VIIC of the Immigration Ordinance.

5.The screening interview scheduled for the applicant on 11 August 2017 failed due to his sickness.  Another interview arranged for him on 12 September 2017 also failed due to his sickness.  The Director proceeded to consider the applicant’s claim on the information available to him.

6.By a notice of decision dated 24 October 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  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 decision covered BOR 2 risk, BOR 3 risk, and persecution risk.  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s Decision

7.The applicant attended a hearing before the Board on 2 March 2018.

8.By a decision dated 13 July 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision coveredBOR 2 risk, BOR 3 risk, and persecution risk.

9.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [40-48] of its decision.  The essential reasons can be summarized as follows:

(1)     there are numerous and significant inconsistencies and discrepancies in the applicant’s evidence regarding central and core aspects of his claims.  He is not a witness of truth [45];

(2)     the Board did not accept the claims that he borrowed any money to start his business, or he was threatened or harmed by his creditor or his people [46].

10.Having considered all the evidence, the Board concluded that there is not a real risk that the applicant would face any of the proscribed forms of harm should he return to India.

Application for leave to apply for judicial review

11.The applicant filed a Form 86 on 23 July 2018 for leave to apply for judicial review of the decisions of the Director and the Board.

12.In theForm 86 and affirmation in support, the applicant did not set out any grounds for the relief sought.  He only attached the decisions of the Director and the Board.  No request for oral hearing was made.  The application is considered on the papers.

Discussion

13.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.

14.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 Observations for the Applicant will only focus on discussing the latter’s decision.

15.The Director did not hold a third hearing for the applicant after two scheduled oral hearing had failed.  I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277.  There was no challenge with regard to procedural regularity and fairness.  Given that the applicant had been given repeated chances to attend an oral hearing and the Director did not seriously challenge the primary facts claimed by the applicant, I do not find the course taken by the Director unfair or irregular.  In any event, he had the opportunity to present his case freely at the oral hearing before the Board.  The decision of the Director was superseded by the decision of the Board.

16.Insofar as the decision of the Board is concerned, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the major inconsistencies and discrepancies in the applicant’s evidence.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

17.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation 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.

18.The Form 86 and affirmation in support did not contain anything 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.

19.Indeed, even if one gives his account the most favourable interpretation, the alleged past ill-treatment was of low intensity and frequency demonstrating only a remote and unreal risk of future harm.  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.

20.On the evidence of the case, there cannot be any criticism of the decisions of the Director and the Board which are entirely reasonable.

21.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

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

Dated 23 December 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