Soni Pratik v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1527/2018

[2021] HKCFI 1172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1527 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.The Applicant is an Indian national.  He left India on 31 December 2015 for Macau, en route Hong Kong, intending to obtain a work visa to work in Macau.  On reaching Macau, he found the employment proposition had fallen through.  He returned to Hong Kong in mid-January 2016.  He surrendered to the Immigration Department on 26 January 2016, the first day he overstayed.  He lodged his non-refoulement claim in May 2016, claiming that he was at risk of being killed by his creditors, if he returned to India.

2.In due course, his non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 29 May 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected his claim.  On 5 June 2017, he lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notice.   On 9 July 2018, the Board dismissed his appeal (the “Decision”). 

3.On 1 August 2018, he applied for leave to apply for judicial review against the Board and the Director, seeking relief against the Notice of the Director but not the Decision of the Board.

4.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established procedures of appeal against the decision of the Director to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notices had been superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[5].  Instead of dismissing his application in respect of the Notice, in the Applicant’s best interest and in the interest of justice, the Court treated his application as if it were one made in respect of the Decision of the Board.  If meritorious, the Court would grant leave to amend the application and then leave to apply for judicial review.  For the purpose of this hearing, the Court also treated the Applicant’s complaints against the Director as if they were also directed at the Board. 

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service and incontrovertible evidence. 

6.The Applicant is a holder of a Bachelor of Commerce degree.  After graduation, he worked as a goldsmith from 2000 to 2013, but his business was not registered.  From then to mid-2015, he was self-employed as a freelance craftsman in Ahmedabad in Gujarat.  He is married with two sons now aged 18 and 20.

7.In September 2008, in order to expand his business, the Applicant took a loan of two million Indian rupees from Manoj Soni (“Manoj”) who to his knowledge was a money lender and operator of a jewellery business.   The loan had to be repaid within six months with interest at 2% per month.  He was introduced to Manoj by a business acquaintance and property developer, Kamal, who acted as his guarantor.   Kamal and Manoj were brothers.  Due to depreciation of the Indian rupees over the past ten years, the value of the loan with interest appreciated from USD 43,500 in 2008 to USD 92,850 in 2018.

8.In late 2010, to fill a large order from a customer who owned a jewellery shop, the Applicant took a second loan of three million Indian rupees at 2% interest per month from Manoj.   The loan was also guaranteed by Kamal.  The value of the loan was USD 66,000 in November 2010 with monthly interest of USD 1,320.

9.However, after delivering three kilograms of gold ornament as ordered worth seven million rupees, the customer disappeared.  The Applicant could not settle his debt.  He dared not report to the police as his business was not registered.  He settled the three million rupees’ loan from his and his father’s savings.

10.In early 2013, the Applicant took out a third loan of 2.5 million rupees, equivalent to USD 46,000, from Manoj under the same terms with Kamal as his guarantor.  Part of the finished goods were delivered.  The value of the remaining goods manufactured was five million rupees, but they were all stolen from a bus in March 2013 when his brother fell asleep on the bus in the course of delivery it to his customer.  The value of the goods at the time they were stolen was USD 92,000.  This time, the Applicant reported the theft in order to show Manoj why he could not repay the debt.  Despite spending a lot of money on legal procedures, the goods could not be recovered.  Manoj insisted the Applicant to clear the debt within 2013.

11.The Applicant had no means to repay.  He tried to commit suicide by taking rat poison.  Later, he moved his family to Ahmedabad in Gujarat to hide out with a friend and to work as a freelance craftsman in an attempt to pay off the debt.

12.In about mid-2014, Kamal and Manoj went to Gujarat to demand the Applicant to repay.  In late 2014, Kamal threatened the Applicant through his contacts in the police force that he could do anything he wanted with the Applicant.  Kamal called him two or three times a day to chase for repayment. The Applicant repaid 500,000 rupees in mid-2015.  Then, his business collapsed when the gold price slumped. Kamal continued to travel to Gujarat to see the Applicant two to three times a month to demand payment.

13.One day, Kamal and about 15 of his men took the Applicant to his office and demanded repayment. The Applicant could not pay and agreed to do office chores for Kamal.  After working three or four months, he found out that Kamal treated him as free labourer and did not set off any of the debt for his work.  He therefore stopped working for Kamal. 

14.One day in November 2015, Kamal took the Applicant to his lawyer’s office and made him sign a document in Gujarati language which he could not read well.  The Applicant was under pressure and signed.  He sensed something was wrong after signing the document.  So he decided to leave India. 

15.The Applicant did not consider internal relocation a viable option.  He would encounter language difficulties if he moved to the southern part of India.  He recalled one of his friend had been robbed and killed when delivering goods to the south.  He could not relocate to the north because Kamal has a vast business network there and could locate him.

The finding of the Board

16.The Board accepted that the Applicant had knowledge of the gold business.  But it did not find the Applicant credible as there were inherent inconsistencies in his evidence and his case was inherently improbable.  The Board found it inexplicable that no mention was made of Kamal or Manoj, the main protagonists in his non-refoulement claim, in his initial report, but then he elaborated on their involvement at the interview with the Immigration Department on 26 May 2016.  The Board was concerned that the Applicant may have developed this story between his initial interview and his non-refoulement claim form.  The Applicant’s assertion that Kamal and Manoj were brothers also cast doubt on his case that Kamal guaranteed his debt owed to his own brother.  The Board also found it difficult to understand why the Applicant would have moved to Ahmedabad to avoid Kamal while Kamal and Manoj had a home and office there.  What substantially under-minded the Applicant’s claim and cast doubt on whether the basis of his claim still exists was his explanation about his economic situation.  He said he could not return to India to take up employment with his qualification as a degree holder because he could only earn between 60,000 and 120,000 rupees a year which would not be sufficient to pay for the tuition fees of eldest son in the prestigious Indian Institute of Technology in Mumbai which charged a fees of 400,000 rupees.  According to the Applicant, he was the sole breadwinner of his family.  The Board therefore found it difficult to understand, given he should be subsisting on allowances in Hong Kong, how, it seems, having left India in financial distress in January 2016, the Applicant could afford to fund his eldest son’s university education, and presumably in addition to providing his family’s necessities.  It wondered why he could not have used the funds for his eldest son’s education to pay off his debt and solve his problem.  The Board also doubted the real motive of the Applicant in coming to Hong Kong because he said that he needed to take his brother out of India because his brother had financial troubles with a moneylender with criminal background and they intended to come to Hong Kong together. 

17.The Board also found it remarkable that even on the Applicant’s own evidence, there was a lack of drama in his claim.  He did not claim to have been beaten up, nor even touched or threatened. Instead, he sensed something wrong after signing a document in Kamal’s lawyer’s office.  That was what prompted him to leave India for his safety.  But there was no compelling reason for his fear.  He did not suggest his family was in any danger.  In fact, he noted that Kamal had not disturbed his family since his departure.  The Applicant said that he needed to leave India so that his children could live safely as if their lives would be in danger if he continued to stay in India.  That is illogical.

18.Understandably, the Board did not accept the Applicant’s evidence.  In the circumstances, the Applicant’s non-refoulement claim had no factual basis to stand on, though his burden was only to prove his fear and risk to a very low standard.

Grounds for judicial review

19.In his affirmation filed in support of his application for leave to apply for judicial review, the Applicant did not put forward any specific grounds other than that he did not want to go back to India as he feared his creditors would harm him.  At the hearing, the Court attempted to solicit specific grounds for his application.  But all that he said was that the Board did not believe his evidence.  He is only challenging the Board’s finding of facts.  He has no complaint about unreasonableness or irrationality in the Board’s Decision or procedural unfairness.

20.The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

21.The Board had carefully set out the Applicant’s case in four pages and analysed his evidence in another four pages.  It then devoted another three and half pages in assessing his credibility.  It gave full reasons for its assessment, based largely on the inconsistencies in the Applicant’s evidence and inherent improbability of his case.  Having rigorously examined the Decision, the non-refoulement claim form and all the relevant papers with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. 

Conclusion

22.Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board. The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonably arguable. There is no realistic prospect of success.  Accordingly, leave to apply for judicial review of the decision of the Director in the Notice dated 29 May 2017 and the Decision of the Board dated 9 July 2018 is refused.

Dated the 28^th day of April 2021.

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

[1]   Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2]   Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3]   Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4]   Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5]   [2018] HKCA 549

[6]   [2018] HKCA 524 at para 14(1)