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

HCAL 1072/2019

[2022] HKCFI 2665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1072 of 2019

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.The applicant applies for leave to apply for judicial review of the Decision dated 15 November 2016 of the Director of Immigration on BOR 2 risk (“the Director’s Second Decision”) and the Decision dated 3 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Since the Director’s Second Decision has been dealt with by the Board, it is not amenable to judicial review and is therefore dismissed.[1]

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of India.  He entered Hong Kong on 4 September 2009 as a visitor and was permitted to stay until 18 September 2009. He did not depart and had overstayed since 19 September 2009.  On 9 October 2009, he was arrested by the police.  On 13 October 2009, he lodged a torture claim, which was later taken as a non-refoulement claim and assessed on all applicable grounds.  His claim was made on the basis that, if refouled, he would be harmed or killed by three loan sharks whose names were Feroze, Zahid and Zamal.

5.According to the applicant, he borrowed a loan of 800,000 Indian Rupees from the three loan sharks in February 2005 for his garment business.  The loan sharks were said to be the financial supporters of the largest political group in India.  Initially, he was able to repay the interests.  Since January 2006, he had defaulted the repayments due to a market downturn.  Since September 2006, the loan sharks visited his house and threatened him and his wife, demanding the repayments.  On three occasions, they came at night and threatened to kill the applicant if he failed to settle the loan.  The applicant’s report to the police was of no avail as the police said that it was a private dispute.  In November 2007, the applicant was assaulted by Zahid and Zamal.  He then escaped to another village.  Nevertheless, his wife told him that Zahid and Zamal claimed to have strong network and could locate him everywhere.  They also stated that they knew the applicant’s whereabouts.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 31 December 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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

c.  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

d.  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”).

7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]; (ii) there was no evidence of state involvement or state inaction [12]-[13]; (iii) state protection would be available to him [14]-[15]; (iv) internal relocation was a viable alternative [16]; and (v) his delay in lodging the protection claim was inconsistent with someone who feared a risk of harm [17].

8.In the Notice of Further Decision dated 15 November 2016, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

9.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as the “Director’s Decisions”.

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board.  On 21 December 2016 and 8 March 2017, the Board conducted an oral hearing for his appeal, during which he elected not to give evidence.  The Board explained the nature of the hearing and the consequences of him not giving evidence to clarify his claim [26].

11.The Board proceeded to consider the applicant’s claim on the existing information.  It noted that the applicant was unable to provide documentary proof of the loan [30].  It also noted that the applicant was unable to give details in relation to the terms of the loan.  He also failed to report to the police that he had been charged with illegal interest rate, which made the Board cast doubt on the credibility on this aspect [31].  The applicant was also unable to explain why he could not borrow the sum from other sources given the high interest rate from the loan sharks [32].  Besides, he only gave a brief and incoherent account as to why he failed to repay the loan [33]. Meanwhile, the Board also observed that the figures, including the one for the interest rate and the interest that he already paid, could not stand after a detailed scrutiny [34].  As a result, the Board refused to accept that he had established a perceived risk of harm due to his outstanding debts.

12.Even taking the applicant’s claim to the highest, the Board also found that the conducts of the loan sharks indicated that they did not have any intention to cause serious harm or even kill the applicant.  The applicant’s evidence on their background and association with the political group was also vague and unpersuasive [39]-[44].  Further, the level of harm sustained by the applicant in the past was not serious [45].  In any event, state protection and internal relocation were both available to the applicant [46]-[50].

13.In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant said he wanted to apply for leave to have judicial review of the Board’s Decision without raising any ground.

DISCUSSION

16.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

18.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.”

19.I have noted that the applicant had refused to provide further information to the Board upon request despite the Board’s warnings above. He cannot complain that the Board did not accept his evidence.

20.The Court of Appeal in TK v Michael C Jenkins Esq  and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC, 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

21.The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim: section 37ZA (1)(a). As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. He had been told the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

22.Where the applicant refused to give evidence to verify his evidence, his evidence is no better than the hearsay evidence, which the Board was entitled to give very little or even no weight to it.

23.The applicant has not given any valid reason to challenge the Board’s Decision.

24.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.

25.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

26.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

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