ABTAB ALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1025/2019

[2022] HKCFI 2488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1025 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;

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 / Non-Refoulement Claims Petition Office (the “Board”) dated25 March 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 July 2018 (the “Notice”) refusing his application for non-refoulement protection. 

2.  The Immigration Department was named as the proposed respondent, but no relief was sought against that department whereas relief was sought against the Board.  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 under section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant had invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. Hence, leave was granted to amend his Form 86 by substituting the Board for the Immigration Department as the proposed respondent.  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 is a national of India, now aged 28.  He entered Hong Kong on 31 December 2014 as a visitor and was permitted to remain until 14 January 2015.  He overstayed and was arrested on 29 January 2015. 

4.  On 30 January 2015, 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[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. By a Notice of Decision dated 13 July 2018, the Director rejected his claims under all four applicable grounds.

5.  He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 25 March 2019, the Board dismissed his appeal.  On 15 April 2019, he applied for leave to apply for judicial review of the Decision of the Board.  The Applicant 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.

6.  Just before the Form Call-1 in respect of this application was to be issued, the Registry received a letter from the Applicant dated 1 August 2022 requesting to withdraw/close his judicial review for the reason that he wants to go back to his home country. The Court did not consider that a proper reason to withdraw the application in the face of his alleged death threat; nor was it appropriate to allow the withdrawal in the absence of any indication that his decision was voluntarily made.  Accordingly, the Court proceeded with the issue of this Form Call-1.

The Applicant’s case

7.  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 will be harmed by the family members of his friends, Sameer and Samin, for having accidentally pushed them off a roof causing them injury.

8.  The Applicant was born in Kolkata, India.  He received seven years of education and has four years’ working experience as a salesman.  One day in September 2014, he played football with his friends on top of the roof of a building under construction. He accidentally pushed his uncle’s son called Samin and his friend Sameer off the roof.  Sameer’s legs were fractured while Samin suffered injuries to his arms and chest and both of his hands were fractured.

9.  Immediately after the accident, family members of Samin and Sameer went to his house and damaged the furniture therein.  They beat up his father and took his father to a police station because his father refused to disclose his whereabouts.  The Applicant was afraid of the families of Samin and Sameer.  He was also concerned with the police case filed against him in relation to the accident.  He claimed that his uncle was a supporter of the then ruling political party, Bharatiya Janata Party. He was scared and fled to Behala where he stayed for five to six days before leaving for Mainland China.  From there, he entered Hong Kong.  While in Hong Kong, his mother told him that the families of the two boys threatened to kill him.

10.  He also alleged that his father had a dispute with his uncles because of the accident.  His uncles and his father had inherited a building from his grandfather.  His uncles refused to give his father any sales proceed or rental income from the building because of the accident.

11.  The Applicant claimed that he would not receive a fair trial in India because the police wrongly believed he had intentionally pushed his friends off the roof.  He also believed he could not safely relocate in India because of the outstanding warrant against him.

The finding of the Board

12.  The Board found the Applicant’s evidence at the hearing was extremely vague, general and inconsistent with his evidence in the NCF.  The Board found him incredible because he made no attempt to substantiate his story with any details and there were inconsistencies between his oral testimony before the Board and the case he advanced before the Director.  A major inconsistency was that the Applicant claimed before the Director that he accidentally pushed his two friends off the roof but his testimony before the Board was that they fell because they were hit by a ball.  When asked about the apparent inconsistency he replied “I meant to say pushed”.

13.  The Applicant was unable to make any substantial replies to the Board’s questions on the conditions of his friends immediately after the accident and by the time of the Board’s hearing, the possible consequences upon his return or why he was afraid of going back to India.  Although he claimed that there was a dispute between his father and his uncles over a building, he was unable to provide any details of the dispute.

14.  The Board noted that the Applicant claimed he was no longer concerned about the families of his friends because they have recovered from the injuries and the only issue is about the dispute between his father and his uncles over the building.  The Board also noted that the Applicant raised no concern about the police or any warrant for his arrest.  In conclusion, the Board found the Applicant’s claim of fear of violence from his uncle or anyone else or arrest by the police is not credible.  It was not satisfied that there were substantial grounds or indeed any ground for finding that he will face a real risk of ill-treatment if he returned to India. Applying the law applicable to the non-refoulement protection under the USM, the Board found that the applicant had failed to discharge the burden of proving his entitlement to protection under any of the four applicable grounds.  Hence, it dismissed his appeal and upheld the decision of the Director in the Notice.

The legal principles applicable to judicial review

15.  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[6].  Thus, absent 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 for judicial review

16.  The only grounds of application put forward by the Applicant in his Form 86 and supporting affirmation is that he is not satisfied with the decision because his life would be in grave danger if he returns to his home country.  The Court assumed that reference to the Director included the Board.   In effect, he was disputing the finding of fact by the Board that he would not face any real harm or risk of harm be at risk of harm if refouled to India.  For reasons as explained in the above paragraph, that was a finding of fact solely within the province of the Board which the court in a judicial review will not interfere unless the Decision was reached as a result of error of law, procedural unfairness or was irrational.    

Discussion

17.  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 not credible.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   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 four applicable grounds under the USM.  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

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

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)