Mahboob Ali v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 264/2019

[2021] HKCFI 3277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 264 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Suffiad:

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 for non-refoulement protection.

2.The Applicant, a male born in 1988, is a national of India. He arrived in Hong Kong in September 2014 and was permitted to remain as a visitor until 22 November 2014. He overstayed in Hong Kong and was arrested by the police on 7 March 2015. The following day he was referred to the Immigration Department, then released on recognizance. He made a formal non-refoulement claim on 9 March 2015.

3.On 17 January 2018, the Applicant lodged a Non-refoulement Claim Form (“NCF”) under the unified screening mechanism (“USM”) to the Director in which the Applicant claimed he will be harmed or killed by a loan shark ‘Vicky’ due to his inability to repay a loan. He also feared harm to himself because of his Muslim religion.

4.By a Notice of Decision dated 9 February 2018, the Director refused the Applicant’s application for non-refoulement protection.

5.The Applicant appealed to the Board against the decision of the Director.

6.The Applicant appeared before the Board at a hearing held on 29 October 2018. By its decision given on 24 January 2019, the Board rejected the appeal by the Applicant and confirmed the decision of the Director.

Applicant’s case

7.The Applicant is a Sunni Muslim born in Bihar state in India. He is single and had worked as a salesman in Khidderpore, Kolkata where his parents now live. In 2011 he commenced a mobile phone resale business in Kolkata. In 2013 he wanted to expand his business requiring about 10 lakhs. The Applicant’s uncle introduced him to a rich, powerful and influential member of Bharatiya Janata Party (“BJP”) named Vicky. The Applicant decided to borrow from Vicky. No agreement was signed because Vicky trusted the Applicant but Vicky demanded 25% share of the profits from the Applicant. From the middle of 2013 Vicky demanded a greater share of the profits, but because business was poor, the Applicant could not make a profit.

8.The Applicant’s uncle asked for more time from Vicky who agreed to a further two months, saying that would be the last chance. In mid 2014, Vicky threatened to kill the Applicant and his uncle for failing to share any profit and failing to repay the principal.

9.In August 2014, the Applicant came to Hong Kong and was told by his uncle to remain in Hong Kong as Vicky may harm him if he returned to India.

10.In September 2014, the Applicant’s parents told him that his uncle had been seriously injured by Vicky and framed by the police in a drug case due to Vicky’s influence on the police. He also received a video clip from a friend showing his uncle was beaten.

11.In November 2014 he overstayed in Hong Kong as he was afraid to return to India. He learned from his parents that his uncle had been released after giving a bribe to ensure acquittal at the trial. His uncle then left India.

12.After he was arrested in Hong Kong for overstaying, the Applicant lodged his non-refoulement claim. The Applicant has kept in touch with his parents who told him that Vicky kept harassing his parents two or three times a month and making threats to kill the Applicant if the loan is not repaid. His last contact with his parents was in January 2018.

13.At the interview, the Applicant told the Immigration Officer that his parents were not harmed by Vicky, only his uncle was attacked and framed. No reports were made by his parents to the police because of Vicky’s influence. He further said that Vicky has no official position in the BJP but is influential and powerful. The Applicant further confirmed that when his uncle was framed for the drug case, he, the Applicant was in Hong Kong.

14.The Applicant further told the Immigration Officer that he was not subjected to harm in India as a Muslim, but there are videos and news stories to support his claim on this matter

15.As for relocation, the Applicant said that he does not feel safe and does not believe that he could live safely in Mumbai or other parts of India. He further did not believe he could obtain police protection because of Vicky’s connections since corruption is widespread in India.

The Director’s decision

16.The Director assessed the Applicant’s claim on all the available grounds under the USM including torture risk under Part VIIC of the Immigration Ordinance, BOR 2 risk under Article 2 of the Hong Kong Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Hong Kong Bill of Rights Ordinance and persecution risk under Article 33 of the 1951 Convention relating to Status of Refugees.

17.The Director found on the evidence that the risk of harm to the Applicant coming from Vicky to be low. Moreover, as a Muslim living in India, the Applicant has never been harmed but that his fears only arose from what he has heard.

18.The Director further found from the Country of Origin Information (“COI”) material that state protection and internal relocation to be available to the Applicant despite the Applicant’s beliefs otherwise.

19.On that basis, the Director rejected the Applicant’s claim for non-refoulement protection.

The Board’s decision

20.On the evidence before the Board, the Board found that the Applicant’s claims regarding the loan from Vicky to be untruthful, but even if true, the Applicant’s problems relating thereto are confined to his home area. The Board was not satisfied that there are substantial or strong grounds or a real risk that the Applicant will suffer harm due to his Muslim religion if returned to India. The Board gave its reasons for those findings (see paras. [39] to [63] of Board’s decision).

21.On the basis of those factual findings, the Board concluded that the Applicant has failed to substantiate each of the applicable grounds under the USM in respect of his non-refoulement claim for protection.

22.Accordingly, the Board refused the Applicant’s appeal and confirmed the decision of the Director.

Discussion

23.The relevant principles on appeals in non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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 and COI materials, 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.

24.When the Applicant pursued his 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 examines the decision of the Director and the Board, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

25.In the present case, the Board did not take issue with the personal and family background of the Applicant accepting them as true. However, the Board found as a fact that the Applicant’s claims regarding the loan from Vicky to be untruthful for the reasons given by the Board. That is a finding of fact well within the province of the Board to make.

26.The Board gave its reasons for coming to this finding due to the numerous inconsistencies and discrepancies between what is stated by the Applicant in his NCF and the oral evidence given by him at the oral hearing before the Board, not the least of which was the percentage of the demand for sharing profits, the length of time that he was unable to repay Vicky and the demand by Vicky for increased profit sharing.

27.As for being a Muslim living in India, the Board accepted that the evidence (from the COI) indicated that there has been a decline in the situation for Muslims in India. However, since neither the Applicant nor any of his family or friends had been harmed in the past, the Board could not be satisfied why the Applicant would be targeted due to his Muslim religion if he returned to India.

28.The Board was therefore not satisfied that there are substantial or strong grounds or a real risk that the Applicant will suffer harm amounting to torture, CIDTP or a risk to his life or persecution if he was returned to India.

29.Furthermore, the Board came to the view from the COI material that internal relocation was available to the Applicant.

30.These findings made by the Board are all findings which are within the province of the Board to make. They are supported by good reasons given by the Board.

31.It has been said time and again that the risk of harm, availability of state protection as well as internal relocation are primarily for the Board and the Director to make findings on and it is not for this court to usurp those functions of the Board unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

32.The present complaint raised by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board.

33.Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered all four available grounds on which this non-refoulement claim is brought, separately and distinctly and dealt with the merits of each limb individually.

34.The decision reached by the Board cannot be said to be in any way unreasonable.  Nor can the court see any error of law, procedural unfairness or irrationality in the decision of the Board.  There is no reasonably arguable basis to challenge the findings of the Board.

35.For the reasons given, there are no prospect of success in the Applicant’s intended application.  Accordingly, the court refused to grant leave for judicial review.

Dated the 19^th day of November 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