Case Document

100%Judiciary

HCAL 230/2021

[2022] HKCFI 1273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 230 of 2021

BETWEEN
	Rasul Golam	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or

consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 10 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended to the effect that the Director is the proposed respondent and the Board is the interested party.

The applicant

4.The applicant is a national of India. He entered Hong Kong as a visitor on 12 July 2014 and was permitted to stay for 14 days. He overstayed and was arrested by police. He was referred to the Immigration Department. By written signification dated 5 August 2014, he lodged non-refoulement claim on the basis that if refouled, he would be harmed or killed by his three creditors for default of repayment of loans. Also, he claimed that he would be harmed or killed by the populace of Hindu community as he is a Muslim.

5.According to the applicant, between 2008 to 2011, he had a partnership business with MD Sameem selling garments and ladies’ purses. For the purpose of expanding the business, he had borrowed altogether 1.8 million Indian Rupees from three creditors: Nadeem, Abdul and Firoz. He had defaulted in payment of interest on the loans. In 2011, he had gone to Thailand twice to buy some garments and sold them in India for profit. But he was unable to make any profit. Shortly after his return to India from Thailand for the second trip, he was kidnapped by Firoz and some other people. They pushed him into a taxi. They were carrying knives and choppers. They took him to an open area where they demanded repayment of the loan. They threatened to chop off his arms and legs and kill him if he tried to escape. Firoz instructed one of his men to chop him. His right index finger was cut and his forehead bled. They then left the scene. His friend Aslam helped him obtain medical treatment. He moved around to live in different places in order to avoid the creditors.

6.On the other hand, he was afraid of the threat of the Hindu populace as they would kill the Muslims. He went to Manesar where there was virtually no Muslim and the people there spoke a different language and had a different culture. He encountered difficulties in his daily life. He left Manesar and stayed in Mumbai instead.

7.His friend Aslam informed him that the creditors were looking for him. Aslam then made arrangement for him to come to Hong Kong in 2014. Details of his story are set out in paragraphs 42 to 121 of the Board’s Decision described below.

The Director’s Decision

8.The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

(3)     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

(4)     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.By way of the Director’s Decision dated 21 December 2016, the Director found that there were no substantial grounds for believing that there would be any real and substantial risk of him being harmed or killed by his enemies upon his return for the reasons (i) the low intensity and frequency of past ill-treatment by his moneylenders was indicative that the future risk of being harmed or killed was not likely to materialize [25-30]; (ii) state protection would be available to him [31-35] and (iii) internal relocation was an option open to him [36 & 37].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board and attended a hearing on 19 July 2018.

11.The Board had considered the evidence in his Non-refoulement Claim Form, the country of origin information and his oral evidence. The applicant also said that he would have further evidence from India. But he did not produce such evidence at the hearing. Having considered his evidence, the Board found that his factual evidence in support of his claim was not persuasive, unreasonable and implausible. See paragraphs 127 to 174. It came to the conclusion that it did not accept the facts of the partnership; that he had borrowed the loans from the creditors; that the creditors had threatened and assaulted him; that he was kidnapped by Firoz and his men; that he had moved to stay in different places that he had difficulties in living in harmony with the Hindu majority and that he would face any risk or danger if he returned to India. See paragraph 174 of the Board’s Decision. The Board also agreed with the Director that internal relocation was an option open to him [188 & 189]. Also, the Board found that there was no complicity of the state in the incidents even if it accepted the core of the applicant’s narrative to be true, which it did not accept [190-193].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 25 February 2021 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said, “I do not agree decision of torture claim appeal board. I want to file Judicial Review against them. I cannot go back to my country. My life in danger over there.”

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1).… …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

17.The Board had considered the evidence and given its reasons in support of its decisions. The applicant has not raised any valid ground to challenge the Board’s Decision.

18.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

20.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

Dated the 10^th day of May 2022

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 10 May 2022 Rasul Golam Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10 May 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5737/17/1/21/IN1182 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 648/16 (Formerly RBCZ 2637/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)