HUSSAIN ZAKIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1923/2019

[2024] HKCFI 3463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1923 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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 9 July 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 20 June 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 April 2019 (the “Notice”) refusing his application for non-refoulement protection.

Background

2.  The Applicant is an Indian national. He entered Hong Kong on 31 October 2008 on a visitor visa that allowed him to remain until 4 November 2008. He overstayed. On 11 November 2008, he was arrested by the police. On 15 November 2008, he made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”). His application was rejected by the Director on 25 October 2013. Then he made a claim for protection on the ground of cruel, inhuman, degrading treatment and punishment on 4 February 2014. But, on 14 November 2014, he withdrew that claim and was repatriated to India on 30 November 2014.

3.  On 28 December 2018, he sneaked into Hong Kong. On 8 January 2019, he surrendered to the Immigration Department and made a non-refoulement claim under the Unified Screening Mechanism (the “USM”) on the same day. In due course, his non-refoulement claim was assessed on all four applicable grounds under the USM, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now seeks leave to review that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the torture claim form (the “TCF”) and the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interviews (the “ROI”) in the presence of his lawyer. In gist, he claims that he will be harmed or killed by a moneylender and the moneylender’s uncle for not being able to repay a loan, if he is returned to India.

5.  The Applicant, now aged 40, was born and raised in Ward Ganj Street, Khidderpore of Kolkata, India. He is married. His wife and two children are living in India. He received formal education for five years and had 13 years’ experience working as a salesman, security guard, and an operator of a garment business.

6.  In 2007, the Applicant and his business partner ran a garment business together. They were living in the same area. In mid-2007, they borrowed USD 100,000 from a moneylender at a monthly interest of USD 3,000 to expand their business. The moneylender was a councillor of the Communist Party of India (Marxist) (“CPIM”) of the area in which the Applicant lived. At the beginning, their business went well. They could pay the monthly interest until August 2008 but not the principal.

7.  In September 2008, when he returned to India after a trip, he found his business partner had disappeared with all the company’s shares and money. He did not report the case to the police because he had not paid income tax and the police was corrupt.

8.  In September 2008, the moneylender went to his home to demand repayment and held him responsible for the loan as he had provided the deed of his house as collateral. The Applicant begged for extension of time. The moneylender gave him a week to repay. Still, the Applicant could not locate his business partner. A week later, the moneylender and his associates armed with sticks and knives arrived at his home to demand repayment. He could not pay. The moneylender slapped his face and ordered his associates to assault him. When his wife and friend intervened, the Applicant took the opportunity to escape and ran to the police station nearby. But, the police refused to register a complaint against the moneylender because the moneylender was the CPIM councillor of the area. Out of the fear of the moneylender, he went to his grandmother’s place and stayed for ten days before leaving India for Hong Kong.

9.  During his five years in Hong Kong, he learnt from his wife that the moneylender had occupied his house and she was forced to live with her parents. The moneylender also went to her parent’s house to ask for his whereabouts, alleging that the Applicant owed him USD 280,000 including five years’ interest. He also threatened to kill the Applicant, if he was located.

10.  In 2014, whilst in Hong Kong, he communicated with the moneylender through his brother offering to sell his share of the land inherited from his father to settle the loan. The moneylender agreed. Hence, he returned to India and stayed at his aunt’s place in Kolkata. However, he could not find any buyer for the land.

11.  In 2015, the moneylender, together with his uncle and associates, went to the Applicant’s aunt’s home to demand repayment. They slapped the Applicant’s face and threatened to kill him. The Applicant went to report the case to the police, but the police refused to help because the moneylender’s uncle was the mayor of Kolkata Municipal Corporation and a member of the Lower Assembly.

12.  Soon, the same group of people went to threaten him again. The moneylender’s uncle slapped his face and threatened to kill him. The associates assaulted him with bare hands and sticks. The Applicant lost his consciousness and was taken to a nursing home for medical treatment. After his discharge, he went to stay in Mumbai for about a month before fleeing to Nepal in 2015. Whilst in Nepal, he learnt from his sister-in-law that his brother had been killed by the moneylender and his uncle because his refused to disclose the Applicant’s whereabouts.

13.  The Applicant did not believe the Indian authorities and police would help him because they were corrupt. He did not believe internal relocation viable because the moneylender and his uncle could locate him throughout the country through their powerful network.

The finding of the Board

14.  The Applicant wrote to the Board and requested to have his appeal determined without holding an oral hearing as all the information about his case was available in his case bundle and he did not have other information for his appeal. The Board accepted his proposal and proceeded to determine his appeal without an oral hearing, pursuant to section 12 of Schedule 1A of the Immigration Ordinance.

15.  The Board found serious discrepancies between the Applicant’s evidence in his TCF, NCF and ROI. Hereunder are some examples.

16.  In his TCF, the Applicant said his loan was in USD and the outstanding amount was USD 280,000; but in his NCF, he said it was in Indian Rupees and the total amount owed was 20 Lakh Indian Rupees. In the ROI, when confronted with the discrepancies, he said he did not remember what he had said in the TCF, but maintained that he owed the moneylender 20 Lakh Indian Rupees. The Board found such conflicting evidence could not be reconciled, and concluded among other reasons given below that the Applicant was not telling the truth.

17.  In his TCF, he said the name of his business partner was Mohammad Shaik Shakeel. However, in the grounds for non-removal, he said it was Gupta. In the ROI, he explained the inconsistency as an interpretation problem or a matter beyond the interpreter’s understanding. The Board was not satisfied with his explanation, as the name of a person had nothing to do with interpretation or the interpreter’s understanding.

18.  As for his whereabouts since his discharge from the nursing home after the assault in 2015, the Applicant said in his NCF that he went to Nepal in mid-2016. When he learned from his sister-in-law that his brother had been killed for refusing to disclose his whereabouts, he said he was in fear and fled to Hong Kong and China. However, during the said period, he was neither in Hong Kong nor in China. The Board found he could only be in India during that period. On this premise, the Board found his conduct was inconsistent with the conduct of a person who was in genuine fear of being harmed or killed and his evidence damaged his credibility.

19.  On the evidence, the Board found the moneylender and his uncle had no intention to kill or inflict grievous bodily harm on the Applicant, otherwise they would have done so when he lost his consciousness during the 2015 assault. It therefore considered his feared ill-treatment was unlikely to materialise.

20.  On the basis of objective country of origin information (“COI”), the Board found that the Indian government has taken practical steps to maintain public order and safety in its jurisdiction, to monitor police conduct and to improve police effectiveness. Hence, it found reasonable state protection would be available to the Applicant upon his return to India. Furthermore, it found that as an able-bodied person, the Applicant could safely relocate to other cities in India to avoid the perceived risks from the moneylender and his uncle, which are localised within his home area.

21.  For Persecution Risk, the Board found the Applicant’s dispute with the moneylender was purely private in nature, 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 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle them to protection under this ground. In any event, state protection would be available to avoid the risk of harm.

22.  For BOR 2 Risk, the Board found that there was nothing to suggest that the Applicant would be deprived of his life by the Indian government or that his life would be threatened by a risk targeting him personally.

23.  For BOR 3 Risk, the Board did not accept that the Applicant had suffered injury of the requisite level of severity as to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest that he would be at such risk of such harm, if refouled.

24.  For Torture Risk, the Board found that there was no involvement by any public official or person acting in an official capacity in the alleged ill-treatment of the Applicant. It was also not his case that there was any acquiescence by the state in inflicting the ill-treatment on him or there is any consistent pattern of gross, flagrant or mass violation of human rights. The claimed ill-treatment did not meet the definition of “torture” under section 37U(1) of the Immigration Ordinance as to entitle him to protection.

25.  Applying the law applicable to non-refoulement protection to the above findings, the Board came to the conclusion that the Applicant was not entitled to protection under any of the grounds under the USM. It therefore dismissed his appeal and affirmed the Director’s decision in the Notice.

Legal principles applicable to judicial review

26.  The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

27.  The Applicant advanced the following 4 grounds in Form 86:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case; and

(4)  the Director’s attitude was unfair.

28.  These grounds are very familiar to the Court as it has seen similar or even identical grounds in other applications. They appear to be template grounds with no particulars prepared by people assisting the applicants, which usually have no or little bearing on the application at issue. The Applicant said they were prepared by his friend after listening to his case. He said he understood those grounds and could answer the Court’s questions relating to those grounds.

29.  However, he could give no particulars of the unfairness and unreasonableness alleged or particulars of the argument or COI which he complained the Board had not taken into account. He complained about the Board failing to give proper weight to the presence of state acquiescence, but he did not even understand the meaning of ‘state acquiescence’. After the term had been explained to him, he admitted he had no evidence of state acquiescence. In fact, state acquiescence was not even featured in his claim, though the moneylender’s status as a councillor CPIM had been mentioned in the evidence. In the absence of arguable or proper and particularized grounds, the Court could only focus on the usual challenges in a judicial review, ie errors of law, procedural unfairness or irrationality in its rigorous scrutiny of the Board’s decision.

Discussion

30.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is 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; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant was not telling the truth and gave adequate reasons for its finding. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of facts and of the law. Insofar as they are findings of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the province of the Board, which the Court on a judicial review may not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision or the making of 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.

31.  For the above reasons, the leave application is 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