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

HCAL 2788/2018

[2022] HKCFI 2689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2788 of 2018

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:

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 29 October 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 May 2018(the “Notice”).  Though he identified the Decision as the decision in respect of which relief is sought, he did not properly identify the Board as the proposed respondent.  Leave is granted to amend the Form 86 to identify the Board as the proposed respondent.

2.The Applicant is an Indian national, now aged 37.  He had previously entered Hong Kong on 11 May 2002, overstayed, convicted and sentenced for breach of condition of stay.  He then applied for voluntary repatriation and was returned to India on 8 November 2004.  He entered Hong Kong again on 16 May 2007 as a visitor using an assumed name and was permitted to remain until 18 May 2007.   He applied for extension of stay on 22 May 2007, claiming he had lost his passport.  While his application was being processed, he left and became an over-stayer.  He was arrested on 8 December 2008.

3.He raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 11 December 2008.  The claim was rejected by the Director on 23 August 2013.  His appeal against the Director’s decision was refused by the Board on 12 November 2013.  That decision became final. 

4.Following the implementation of the Unified Screening Mechanism (“USM”), his claim was also assessed on BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3].  His claim was dismissed by the Director’s Notice dated 11 May 2018.  He appealed, but his appeal was dismissed by the Board’s Decision.  He now sought leave to apply for judicial review of that Decision.  He did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in the torture claim form (“TCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that he would be harmed by his paternal uncle (“Yusuf”) upon his return because of a property dispute.

6.The Applicant was born in Kolkata, India.  He is single.  He had received 12 years of formal education.  His grandfather had two properties, one in Mominpore Road and one in Mayur Bhanj Road.  He lived in the property on Mominpore Road with his family.  His grandfather passed the two properties to him because his father was getting old and Yusuf was a drunkard. His grandfather died in 2000.  Yusuf was jealous of the Applicant because he received neither of the two properties.

7.In June 2001, Yusuf came to the Applicant’ house and threatened to kill him unless he transferred the two properties to Yusuf. Yusuf left after the Applicant said he would think about it.  The Applicant then filed a report at the Ekbalpore Police Station but the police took no action.

8.Yusuf returned about two weeks later and repeated his demand.  He left after the Applicant asked for time to consider.

9.One day in July or August 2001, Yusuf came to his house again and made the same threat.  The Applicant refused and Yusuf slapped him twice.  The Applicant then moved to live with three different relatives.

10.He travelled to Bangladesh in February or March 2002 but did not raise any claim for protection there, because he thought the situation in Bangladesh was worse than that in India.  For his safety, he came to Hong Kong in May 2002.  He overstayed until he was repatriated in November 2004.  He did not raise any claim for protection in Hong Kong at that time because he did not know his rights to do so.

11.The Applicant returned to India around the time of Ramadan, thinking Yusuf would not harm him during the holy month.  In January 2005, Yusuf came to his house with two other people. Yusuf woke him up and pointed a gun at him.  Yusuf left after taking away the Applicant’s passport so that he could not leave India.  Out of fear for Yusuf, the Applicant moved to stay with his maternal uncle for the next two years.  He applied for a new passport with the help of an agent.  For reasons unknown to him, the passport was issued under a different name.  He entered Hong Kong using that passport.

12.In around March 2018, he learnt from his father that Yusuf had vowed to take revenge on him.  He also claimed that his father and sister had to move to another place to avoid Yusuf.

13.The Applicant claimed that the police would not help him because Yusuf has powerful political connections in West Bengal, India.  Yusuf was said to be a member of the Communist Party of India (Marxist) when it was in power, but after the All India Trinamool Congress (“TMC”) came to power, Yusuf became a member of the TMC.  The Applicant claimed that Yusuf would use his political connections to locate him.

The finding of the Board

14.The Board found the Applicant to be an untruthful witness who had fabricated his case in an attempt to enhance his claim for protection and to extend his stay in Hong Kong.  It rejected his account because of the numerous and significant inconsistencies between his evidence before the Director and that before the Board which undermined his credibility.

15.In his TCF, the Applicant claimed to have received a written record of his police report at the Ekbalpore Police Station.  He specifically said in the TCF that he had supporting documents including a police report which his friend was going to bring to Hong Kong for him.  However, his testimony before the Board was that the police turned him away before he could register a complaint and did not give him any written record.

16.The Applicant claimed in the TCF that he had documents supporting the transfer of the two properties by his grandfather to him and that he was unable to produce the documents at the time but his friend would bring the record to him at the end of July 2013.  But, he was unable to produce the documents to the Board even by the hearing in 2018.  He explained that there was no one who could bring the documents from India to him.  The Board rejected that explanation as his father who was in India and collecting rent from at least one of the properties could obtain the documents and send them to him by electronic means.

17.The Board was also concerned about the Applicant’s delay in applying for protection.  The Applicant made no mention of his alleged need for protection when he was arrested and imprisoned for over-staying.  He explained that he was unaware of the availability of non-refoulement protection when he came to Hong Kong in 2002.  The Board found his explanation inconsistent with his request for voluntary repatriation on 30 October 2004.  It also rejected the Applicant’s assertion that he had discussed his situation with his co-prisoners who suggested him to return to India and come to Hong Kong again because given his means he could have obtained legal advice during his first trip to Hong Kong, if he were truly in fear of returning to India.

18.The Board found the Applicant’s account for using a passport with the name of another person for his second visit to Hong Kong unconvincing.  It found he was not telling the truth.

19.The Board found Applicant’s voluntary repatriation back to India in November 2004 inconsistent with his alleged fear for Yusuf.

20.The Board had significant concerns about the Applicant’s failure to mention at the oral hearing the incident in early 2015 when Yusuf entered his home at midnight and pointed a gun at him.  The Board could not accept that the Applicant would have forgotten about such a threatening incident if it had actually occurred.  It found he was not telling the truth.

21.In conclusion, the Board rejected the centrepiece of the Applicant’s claim for protection.  It did not accept that he received two properties from his grandfather; that Yusuf threatened him in the four incidents; that he feared returning to India for the reasons he claimed or for any other reasons; and that he will be harmed if he returns to India.  As the Board did not accept that Yusuf had threatened or harmed the Applicant, it did not accept that Yusuf will try to find the Applicant or is so connected in politics as would make it easy for him to find the Applicant.

22.Applying the law applicable to non-refuolement protection under the USM to the facts found, the Board found the Applicant had failed to discharge the burden of proving the factual basis in support of his claim based on BOR2 Risk, BOR 3 Risk and Persecution Risk and dismissed his appeal.  In relation to Persecution Risk, the Board found, in addition, that the Applicant’s disputes with Yusuf is a private personal land dispute which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

The legal principles applicable to judicial review

23.The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[4]. Thus, in the absence of specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds of judicial review

24.The Applicant did not put forward any grounds of judicial review in his Form 86.  In his supporting affirmation, he reiterated that he had been threatened by his uncle and that his life is in danger in India.  He had been invited by the Court via its letter dated 18 May 2021 to advise the Court of his first language, contact number and to file submissions.  He responded but made no submissions.

Discussion

25.In the absence of specific grounds of application, 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 his home country.  In effect, he is challenging the Board’s finding of fact that he would not face any real harm or risk if returned to India, which is impermissible except for error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

26.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 found the Applicant to be an untruthful witness who had fabricated his case in an attempt to enhance his claim for protection and to extend his stay in Hong Kong.  It rejected his account because of the numerous and significant inconsistencies in his evidence. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the three remaining grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  This is a finding of fact solely 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 Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

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

Dated the 1^st day of September 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 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”)

[2] 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

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

[4] [2018] HKCA 524 at para 14(1)