Mohamed Gani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 262/2019

[2022] HKCFI 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 262 of 2019

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 15 January 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 February 2018.

2.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.  

3.The Applicant arrived in Hong Kong from India on 9 August 2015.  He was permitted to remain as a visitor until 23 August 2015.  He was arrested by the Police on 24 August 2015 for over-staying and referred to the Immigration Department.  On 27 August 2015, he lodged non-refoulement claims by way of a written representation.

4.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[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  By a Notice dated 15 February 2018, the Director rejected his claims.  The Applicant appealed to the Board against the decision in the Notice.  His appeal was dismissed by the Board’s Decision dated 15January 2019.  On 25 January 2019, he sought leave to apply for judicial review against the Decision. 

The Applicant’s case

5.The Applicant is national of India, born in 1970, married with two daughters.  He is now aged 51.  He was educated up to primary 5 level.  He was a self-employed farmer in India.  He worked as a construction worker in Qatar from 2003 until 2015.

6.In 2008, he borrowed a loan of around 300,000 Indian rupees at a monthly interest rate of 6% from a moneylender for the treatment of his wife’s cancer.  The loan had to be repaid within two years. He gave the title documents of his house, worth 1 to 1.2 million Indian rupees, to the moneylender as security. 

7.His moneylender belongs to the All India Anna Dravida Munnetra Kazhagam (“ADMK”) political party.  He had been a member of the Legislative Assembly and a minister of the government until he stepped down in 2016.  The Applicant knew that the moneylender was involved in loan sharking business, but did not know if ADMK was also involved.

8.At the time, he earned 15,000 to 16,000 Indian rupees each month as a construction worker in Qatar and had to rely on his wife and mother-in-law to make up the shortfall in making the interest payments.  He was given extension of time to three years to repay. 

9.The Applicant paid interest every month and repaid the loan in around 2011.  But the moneylender did not return the title documents under the excuse that he had misplaced them and will return it to the Applicant when the Applicant next returned from Qatar. 

10.After the Applicant’s return to India in 2015, he was unable to contact the moneylender until he made an appointment to see him on 1 August 2015.  At the meeting, when he demanded return of the title documents, the moneylender alleged that he had not fully repaid the loan and that 600,000 Indian rupees were still owing.  The Applicant denied.  The moneylender told the Applicant to leave and said that he would talk to the Applicant in his home.

11.On the following day, while the Applicant was out, three of the moneylender’s assistants came to his house looking for him. They assaulted his wife and one of his daughters with wooden sticks.  They threatened the wife to surrender the house or they would return and kill the Applicant.  When the Applicant returned and saw what had happened, he became angry.  He assaulted and injured one of the moneylender’s assistants with a stick. Then, he became scared and fled to his uncle’s house some 80 kilometres away and stayed there for four days.

12.At the advice of his friend, he flew to Hong Kong to seek protection.  While in Hong Kong, he was told by his wife that the moneylender was looking for him because the moneylender would like to force the Applicant to transfer the house to him.  His wife moved to a new place about 7 kilometres from their home village.

13.The Applicant did not believe he will get protection from the Indian government because of the political background of his moneylender.  He did not believe he could safely relocate to other parts of India because his moneylender could locate him with his wide network of connection.

The finding of the Board

14.The Board did not find the Applicant credible, but nevertheless assessed his claims on the basis of his evidence as summarised above.  However, even on his evidence, the Board considered his feared treatment would unlikely materialize.  First, the Applicant only encountered one physical confrontation throughout the period of his problem with the moneylender.  He did not suffer any injury.  Instead, he was able to beat one of the moneylender’s assistants.  Though his wife’s arm was injured and his daughter’s hand bled, they were able to report to the police.  They were hospitalised for one week, suggesting that the injuries were not serious. Second, there is no evidence that ADMK or the state was involved in the loan sharking business.  The Applicant had no problem leaving India via official immigration channels. Third, the moneylender had no means to locate the Applicant.  His influence is localised.  Fourth, on the basis of the COI, state protection and internal relocation are available to negate the level of risk or avoid the risk.  Applying the law to the facts, the Board found that the Applicant has failed to discharge the burden of proving his entitlement to non-refoulement protection under any of the applicable grounds under the USM.

15.In respect of Torture Risk, the Board found the ill-treatment complained of did not attain the degree of severity to fall within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance, though the moneylender was connected with ADMK, an ex-member of the Legislative Assembly and ex-Minister, his acts were performed in his personal capacity as a moneylender and not connected with his former official capacity; and state protection and internal relocation are available to prevent or avoid the risk.

16.In respect of BOR 2 Risk and BOR 3 Risk, for the same reasons, the Board found there is no evidence that the Applicant would face a real and personal risk of his right to life under BOR 2 being violated; or a genuine or substantial risk of being subjected to ill-treatment under BOR3.

17.In respect of Persecution Risk, the Board found that the ill-treatment was not on account of the Applicant’s race, religion, nationality or membership of a particular social group and is thus outside the protection covered under this ground.  The Board also assessed the risk of his feared ill-treatment is low. 

The applicable legal principles          

18.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[6].

Grounds for judicial review

19.In his Notice of Application for Leave to Apply for Judicial Review (Form 86), the Applicant advanced the following four grounds in support of his application:

(1)  the Decision is unreasonable and unfair; he was not given sufficient time and chance to arrange the relevant evidence;

(2)  the Director failed to give proper weight to the presence of state acquiescence and the fact that the Applicant was tortured at the behest of state law enforcement agencies and “those in the high up of political circles”;

(3)  the Director failed to take “such argument into account”; and

(4)  the unfair attitude of the Director.

As mentioned above, for the benefit of the Applicant, complaints made against the Director are deemed to be made against the Board as well.

20.At the hearing, the Applicant admitted that the grounds stated in Form 86 were prepared by his friend for him.  But he was equivocal as to whether they were prepared at his instruction or with his consent.  Sometimes, he admitted they were and adopted them. Sometimes, he disagreed and denied he had knowledge of the grounds stated in Form 86.  The Court, nevertheless, went over the grounds with him and listened to his arguments.  In his affirmation in support, he exhibited the Decision and the Notice, but did not advance any grounds of application.  Grounds (1), (3) and (4) are not particularised.  It will be convenient to deal with his second ground first which has been particularised.

Ground (2)

21.The essence of the Applicant’s complaint is that the Board failed to take into account the fact that his moneylender is a public official or one “in the high up of political circles” and hence the ill-treatment was inflicted on him at the behest of state law enforcement agencies.  The thrust of his argument is that the assault on the Applicant’s wife and daughter were occasioned by the moneylender through the hands of his assistants.  The Board had taken note of these facts fully and considered his arguments.  At paragraph 18, the Board noted that the moneylender was affiliated to ADMK political party, was an ex-member of the Legislative Assembly and an ex-Minister.  The assaults took place in 2015 before the moneylender stepped down from the Legislative Assembly.  The moneylender may arguably still be a state official at the time of the assault. 

22.Be that as it may, to qualify for protection under Torture Risk ground, the claimant must show that pain or suffering is intentionally inflicted on him for such purposes as stated in section 37U(1) and by or at the instigation of or with the consent or acquiescence of, a public official or other person acting in an official capacity.  As stated in The United Nations Convention Against Torture: A handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1988, the purposes must show the existence of some connection with the State’s interests or policies.  Having considered this guideline, the Board held at paragraph 74:

“The acts or conduct of [the moneylender] were that of a person consumed by greed, refusing to release the title deeds of [the Applicant’s] house after full repayment of the loan. He was bent on taking legal possession, after scaring [the Applicant’s] family into vacating the house. It was not for any of the listed purposes.”

The acts and conduct relied on by the Applicant could have no connection with the state interest or policy of India. They fall clearly outside the scope of protection under the Torture Risk ground.  The Board could not have erred in its finding at paragraph 74.  The Board has not failed to take into account the facts and arguments advanced by the Applicant and has not erred in its conclusion.   For this reason alone, the Applicant’s claim under Torture Risk ground must fail.  There is no substance under this ground.

Grounds (1), (3) and (4)

23.The Applicant was unable to give particulars of the unreasonableness or unfairness in the Decision and the unfair attitude of the Director or the Board complained of and the arguments which he alleged the Board of having failed to take into account.  As for his complaint of lack of sufficient time to arrange the relevant evidence, presumably he meant he only had a few days between service of the hearing bundle on him and the hearing.  However, the single most important document in the hearing bundle is the Notice which had been issued to him on 15 February 2018.  He had between the date of issue of the Notice and the hearing before the Board about ten months to prepare for the appeal.  The other documents in the hearing bundle are the NCF prepared by him with the assistance of an interpreter and the Duty Lawyer and the record of his answers given by him during the screening interview with the assistance of an interpreter and with legal advice.  He knew the contents of these documents. He had the benefit of the submission made by the Duty Lawyer on his behalf at the screening interview.  All the benefits which legal assistance could have afforded him were contained in the hearing bundle before the Board.  He also admitted he had the opportunity to answer the Board’s question and address the Board.  In the absence of particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to India.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India and that in any event state protection and internal relocation are viable options to prevent or avoid the risk. 

24.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; quoted relevant precedents in support of its decision; and observed a very high standard of fairness.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claims.  The Applicant’s claims are founded on his fear of being harmed by a moneylender trying to force him out of his house which is not connected with any state interest or policy of India.  The Board had correctly applied the law but found that even on the basis of his case, the Applicant is not entitled to non-refoulement protection. This conclusion was further supported by availability of stated protection and internal relocation.  Basically, the Applicant failed to discharge his 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.  There was no error of law in the Decision or procedural unfairness in the proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  The Decision was utterly without fault.  The Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. 

Conclusion

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

Dated 4^th day of February 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] [2018] HKCA 549

[2] 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

[3] 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”)

[4] 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

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

[6] [2018] HKCA 524 at para 14(1)