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

HCAL 1546/2019

[2023] HKCFI 3032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1546 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:

Introduction

1.This is the Applicant’s application by Form 86 filed on 5 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 24 May 2019 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 November 2017 (the “Notice”). 

2.The Applicant had not requested an oral hearing.  Having considered the nature of the application, the issues raised, the Decision, the papers, and all the circumstances, the Court considered his leave application may be justly determined on paper without an oral hearing.  

3.The Applicant is an Indian national.   He entered Hong Kong on 25 December 2013 as a visitor and was permitted to remain until 29 December 2013.  He overstayed and was arrested on 26 February 2014.   On 28 February 2014, he raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) 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 a moneylender (the “Moneylender”), if refouled, for being unable to repay the debt he and his friend had borrowed.

5.The applicant, now aged 39, was born in Kolkata-23, India.  He received formal education for about 10 years.  He has about 6 years of working experience running his own business in clothing and garment.  In 2004, he started a garment business with his friend. In 2008, they borrowed 2 million Indian rupees from the Moneylender introduced by his friend to expand their business.  The interest rate was fixed at 2% per month and the principal shall be repaid within three years.  The Moneylender is a supporter of the Communist Party of India Marxist (“CPIM”) and knew CPIM’s senior leaders.  The Applicant believed that the Moneylender’s involvement in CPIM enabled him to pursue his moneylending business.

6.The Applicant and his friend were able to repay the interest until December 2008 when the business deteriorated.  The Applicant was away in New Delhi in mid-2010.  Upon his return, he learnt that his friend had left India and moved to Canada with the funds of their business.  When the Moneylender learned that his friend had moved, he held the Applicant responsible for repayment of the loan.  In the months that followed (end of 2010 or early 2011), the Moneylender and four to five of his associates went to the Applicant’s home every week to check the progress of repayment and threatened the Applicant that if he failed to repay, the consequence will be serious.    

7.During their visit in October 2011, the Moneylender became more hostile and pushed the Applicant.  In a visit in November 2011, the Moneylender drew a knife and threatened to cut off the Applicant’s limbs if he failed to pay.  The Applicant was afraid and moved to Metiaburj where he stayed for about two years.  During this period, he remained hidden and out of contact.

8.The Applicant returned to his home in September 2013.  The next day, the Moneylender visited him at his home.  He punched and kicked the Applicant for five minutes causing bruises, swellings and an open wound on his neck.  It took him eight to ten days to recover.

9.The Applicant tried to flee to Mainland China but he was attacked by the Moneylender’s men at the airport.  They beat him with fist for five to six minutes.  He suffered injuries all over his body.  It took him eighteen to twenty days to recover.

10.Eventually, the Applicant managed to travel to Hong Kong via Thailand on 24 December 2013.  His brother informed him in late September 2017 that the Moneylender was still visiting his home and threatening his family that he would not live long if he returned.  The Applicant firmly believes his life will be at risk if refouled due to his inability to repay his outstanding debt.

11.He believes that the Indian police would not protect him as the Moneylender is a rich man with connections with CIPM.  He also did not believe internal relocation was viable as he lacked the means and employability and it was difficult for him being a Muslim to live amongst Hindus.

The finding of the Board

12.The Applicant testified before the Board.  The Board noted significant inconsistencies between his testimony and his claims in the NCF and screening interview.  He also made a first time allegation about a third assault in his home about three weeks before he left India during which the Moneylender allegedly threatened to kill him.  The Board did not find the Applicant a credible witness and did not accept his account as truthful.  Nevertheless, it assessed his claim on the basis of the case as he asserted and found he had failed to establish the factual basis to support his claim for protection under any of the four applicable grounds under the USM.

13.On the basis of the Applicant’s evidence, the Board made three important finding of facts.  First, it found there was no evidence showing that the Moneylender was in anyway an influential person or backed by the government or someone with authority or by Kuldip whom the Applicant alleged was formerly affiliated with CPIM and now with the ruling party Bharti Janta Party.  The Board found the Moneylender was a non-state actor. 

14.Second, it found the injuries suffered by the Applicant were not serious and did not attain the minimum level of severity.

15.Third, it also found on the basis of authoritative and credible country of origin information that adequate state protection is available.  It was only the Applicant’s choice not to access state protection because of his unfounded believe that such protection is not available.  

16.In respect of Persecution Risk, the Board found that the Applicant’s fear of persecution arose out of a personal monetary dispute between him and his Moneylender and was not on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, namely race, religion, nationality, membership of a particular social group or political opinion.  His claim under this head falls outside the protection of Persecution Risk ground.

17.As for his claim under BOR 2 Risk ground, there is no evidence that the government of India or any state parties in India will violate the Applicant’s right to life.  His claim under this ground fails.

18.The Applicant’s claim under BOR 3 Risk ground is based on ill-treatment inflicted by the Moneylender, whom the Board found was not a state actor.  While it is not necessary to show involvement by a public official in the ill-treatment, the ill-treatment by a non-state actor would only be regarded as a breach of BOR 3, if it can be shown that the government failed to provide him reasonable protection.  As the Applicant had never informed the police or any other authority in India about the attacks by the Moneylender, the Indian authorities did not know about his plight.  There was therefore no evidence that the state was unwilling or unable to afford protection to the Applicant.  His claim under this ground fails. 

19.To prove Torture Risk ground, the Applicant must show prove torture within the definition of ‘torture’ under Section 37U(1) of the Immigration Ordinance, in particular that it was inflicted for such purposes as stated in the subsection 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.  The Applicant was a non-state actor and there was no evidence that any public official or persons able to wield the authority of the government and/or state had any connection with his claimed ill-treatment.  Besides, the injuries he suffered were not serious and did not attain a minimum level of severity.  His claim under this ground fails. 

20.Given his age and experience, the Board found the Applicant could easily relocate himself in any major city in India to avoid the Moneylender and it would not be unreasonable or unduly harsh for him to so relocate.  In fact, he was able to avoid the Moneylender by staying in Metiaburj for almost two years. 

21.The Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.

The legal principles applicable to judicial review

22.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[5].  

Grounds for judicial review

23.The Applicant did not put forward any grounds of application for judicial review in his Form 86.  In his supporting affirmation, he only exhibited a copy of the Decision.  In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm protected by the four applicable grounds if returned to India. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient 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. 

Discussion

24.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to Persecution Risk, BOR 2 Risk and BOR 3 Risk grounds; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  Though finding him incredible, the Board assessed the Applicant’s claim wholly on the basis of his case as he asserted.  It was on that basis that the Board found his feared ill-treatment is unlikely to materialise; and even if it does, he could safely avoid the risks by internal relocation and it would not be unduly harsh to expect him to do so.  Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds.  These are finding of facts and of law.  Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as he asserted.  He could have no reason to complain about the Board’s finding of these primary facts.  It was on that basis that the Board further found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds.  This is a mixed question of fact and of law.  Insofar as it is a finding of fact, it is 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.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

25.For the above reasons, leave to apply for judicial review of the Board’s Decision is refused.

Dated 22^nd day of November 2023.

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