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

HCAL 539/2019

[2022] HKCFI 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 539 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 the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 13 February 2019 (the “Decision”). 

2.The Applicant entered Hong Kong as a visitor on 30 August 2014 and was permitted to stay until 13 September 2014.  He overstayed for about two weeks and was arrested by the Police and referred to the Immigration Department on 26 September 2014.  On the following day, he made a non-refoulement claim by written representation (the “written representation”). On 2 March 2018, he completed a formal non-refoulement claim form (“NCF”).   His claim was based on his fear of harm from the relatives of his late business partner.

3.In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By the Notice dated 9 April 2018, the Director rejected his claim.  He appealed to the Board.  His appeal was dismissed by the Board’s Decision dated 13 February 2019.  On 25 February 2019, he sought leave to apply for judicial review against the Decision.  The Applicant did not request an oral hearing.  Having considered the papers, the Court was satisfied that his application may be appropriately determined on paper without an oral hearing.

The Applicant’s case

4.The following is a summary of the Applicant’s case mainly based on the information in the NCF prepared by him with the assistance of the Duty Lawyer Service.

5.The Applicant is an Indian national, a Muslim by religion.  He is married and has one daughter of about eight years old.  He had six years’ formal education.

6.In 2012, the Applicant joined a mobile phone business originally run by his good friend Muhammad Shamim (“Muhammad”) with Muhammad providing the capital and he taking over responsibility for its operation.  He had a good relationship with Muhammad, but did not know much about Muhammad’s background because Muhammad never talked about it or introduced the Applicant to his family. 

7.One day in July 2014, the Applicant went with Muhammad and two other friends, including the Applicamt’s friend Saleem, to the beach.  Only the Applicant and Saleem knew how to swim.  Muhammad and the other two friends went into the water, while the Applicant watched from the beach. After about 35 to 40 minutes, the Applicant left for the store to buy food. When he returned to the beach after approximately 30 minutes, Saleem told him that Muhammad had drowned.  Saleem explained that “they” had tried to save Muhammad, but in vain.  Saleem called the police.  Feeling sad and guilty as he was the one who had taken Muhammad to the beach, the Applicant left before the police arrived.

8.The Applicant was subsequently told by his neighbour that Muhammad’s family was angry with him for taking Muhammad to the beach and believed that he wanted to kill Muhammad in order to take over the mobile phone business.  The Applicant stopped running the business and worked as a part-time labourer.

9.There were many inconsistencies in his evidence about the threat among his written statement, the NCF and his evidence before the Board.  The essence of his case as stated in the NCF is that one day Muhammad’s brother and two to three unknown men confronted him in his workplace and accused him of causing Muhammad’s death.  The Applicant tried to explain that Muhammad’s death was an accident.  His brother did not listen and said “it’s a life for a life”.  He understood that to mean they would kill him to avenge Muhammad’s death.  His brother and the others who were with him pushed and tried to further assault him with their hands.  Luckily, his colleagues intervened.  One or two days after the incident, the Applicant decided to leave India.  He left India on 29 August 2014.

10.In his written statement, he referred to Muhammad as his best friend and business partner; and said that Muhammad’s family hit him and threatened to kill him; that he went to the police to seek help but was instead put in a cell.

11.In his NCF, he corrected his written statement. He said by “best friend”, he meant good friend; and by “his family”, he was referring to Mohammad’s brother and two to three unknown men.  These differences may not be important.  But most significantly, he changed part of his story and said he did not in fact go to the police station and was not put in a cell.

12.At the screening interview, he provided a different timing.  He said it took him four months to recover from the assault, he mentioned for the first time that he went to hospital 15 to 20 days after the assault because initially he did not realise he might need medical treatment. He said “his bones of lower chest from left side were cracked”.  He explained the injury by saying that the assault caused him to fall down on “something like of wood”.  He was not hospitalised and returned home after taking X-ray and receiving some treatment.  Prior to leaving India, he did not encounter Muhammad’s family.  But after he had left, Muhammad’s family have been visiting his home looking for him.  

13.He said that internal relocation is not a viable option because he has nowhere to stay and Muhammad’s family could locate him as they had done so once.  He admitted he could avoid Muhammad’s family if he moved to Mumbai or Delhi, but he could not do so as he did not know anybody there.

The finding of the Board

14.In assessing his credibility and weighing his evidence, the Board had given allowance to the fact that the Applicant may understandably be bewildered, frightened and even desperate, that he may not understand the process or language spoken at various stages in the process and this may affect the consistency and veracity of his evidence.  The Board is also mindful of the fact that it is quite possible for the centrepiece of an applicant’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness.  But the Board was satisfied that this was not the case with the Applicant’s evidence.  Because of the many inconsistencies in his evidence and the inherent improbability of his assertions, the Board formed the view that the Applicant was not a witness of truth and that he had fabricated claims in relation to Muhammad and his family.

15.In addition to the inconsistencies mentioned in the above section which cast doubt on the Applicant’s account of threat and assault, the Board found many other inconsistencies between his evidence given in the NCF and that at the oral hearing before the Board.  Most importantly, he changed his evidence about his involvement in the business.  He resiled from his allegation that he was responsible for the operation of the business and conceded that he was not in charge of operating the business, not even its day-to-day sales to customers unless Muhammad was out.  He tried to boost his participation by asserting he had put 30,000 Indian rupees into the business.  That was after he had already become a partner.  That amount was about half the price of a smart phone and could not persuade the Board that it would be sufficient to make him an equal equity partner in the business.  His case of fear and harm is premised on Muhammad’s family suspecting him of killing Muhammad in order to take over Muhammad’s business.  Given his level of education and experience and the totality of the evidence, the Board was not satisfied that the Appellant had proved he was in partnership with Muhammad.  The Board found he was just an employee of Muhammad.  Accordingly, the Applicant’s case crumbled.    

16.The Board was unable to accept the basis of the Applicant’s claim that Muhammad’s family thought he was somehow to blame for Muhammad’s death as the Board considered he had nothing to gain from Muhammad’s death.

17.The Board also considered the Appellant’s evidence as to whether Muhammad’s family knew him, where he stayed after Muhammad’s death, when he went to hospital for treatment of his injuries occasioned by the assault ambiguous and incredible.

18.The Board was not satisfied that the Applicant was in business partnership with Muhammad; that Muhammad’s family blamed him for Mohammad’s death; that he was ever assaulted by Mohammad’s brother or anyone else associated with Muhammad’s family; that he had been to hospital for examination or treatment; and that he is in adverse interest to anybody in India.  Having reached these findings, there is no factual basis to support the Applicant’s claim under any of the four applicable grounds under the USM.  The Board therefore found there is not any real risk that the Applicant would face any of the proscribed forms of harm should he return to India.  It also found it reasonable and viable for the Applicant to relocate to another part of India.  For these reasons, the Board dismissed his appeal against the Director’s decision in the Notice.

Grounds for judicial review

19.In his affirmation filed in support of his application, the Applicant exhibited the Director’s Notice, the Decision of the Board and some documents from the hearing bundle before the Board.  Obviously, he disagreed with those decisions, but he did not put forward any specific grounds in support of his intended application for judicial review. Presumably, he is obviously seeking to challenge the Board’s conclusion and finding of fact.  In his letter dated 28 May 2020, he asked for time to file additional documents which were in his home in India which could not be made available to him because of a typhoon and flood.  One year and seven months lapsed.  He did not file any document.

The applicable legal principles     

20.The role of the court in judicial review is not to re-assess the non-refoulement claims 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[5].

Conclusion

21.Having rigorously examined the Decision, the papers and the evidence 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; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board had carefully assessed the Applicant’s credibility and weighed the evidence.  It found the Applicant was not a witness of truth and did not accept his evidence.  As stated in paragraph 18, the Board was not satisfied that the Applicant had discharged the burden of proving the factual basis required to support his claim of fear from harm.  It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of internal relocation.    Basically, the Applicant failed to discharge her burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Court could not identify any procedural unfairness.  There is no realistic prospect of success in the proposed judicial review. 

22.For the above reasons, leave to apply for judicial review was refused.

Dated 19^th day of January 2022.

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 524 at para 14(1)