SHARAVAN SONI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   The Form 86 was amended on the Court’s own motion; and

2.   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 6 May 2021 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 16 April 2021 (the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 31 August 2020 (the “Notice”) refusing his application for non-refoulement protection. 

Background

2.  The Applicant is an Indian national, now aged 32.  He arrived in Hong Kong on 26 January 2020 and overstayed since 10 February 2020.  On 25 June 2020, he was arrested by the police.  Then he lodged a non-refoulement claim.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, he claims he will be harmed or killed by four moneylenders, if returned to India, for being unable to repay the loans he borrowed from them.

4.  His case is that he borrowed 500,000 Indian rupees at a monthly interest rate of 5% from each of the four moneylenders to start an ornament business.  The loans were to be repaid in three years.  He believed his moneylenders were very powerful because they were supporters of the Bharatiya Janata Party (the “BJP”) which was in power in India.  He set up his shop in February 2019 in a bazaar about three kilometres from his home.  He travelled to and from his shop everyday with his ornaments.  He was able to pay monthly interest until June 2019.  One evening in June 2019, he was robbed when he was riding back home on his motor cycle with all his gold ornaments in a backpack. He became unable to pay the monthly interest.  The moneylender gave him an extra month to pay and threatened him with serious trouble if he did not pay.

5.  In August 2019, his four moneylenders came on different occasions to demand payment.  He was threatened with death if he failed to repay them the principal and interest.  He could not pay.  In September 2019, he came across one of the moneylender and his men.  They swore at him and assaulted him for three minutes.  He did not dare to report the attack to the police for fear of revenge from the moneylender.  He fled to Kolkata.  He learned from his family that the moneylenders had been to his home looking for him and threatened to kill him if he did not repay the loans, but his family was unharmed.  He did not believe the police would help him nor could he relocate to other cities in India because the BJP was the ruling party and was powerful all over India.   

The finding of the Board

6.  The Board found the Applicant’s account implausible and incapable of belief.  It found it implausible that the four moneylenders would have lent such huge sums of money to an unknown person without security but solely on his verbal promise to repay. His case was unsupported by any documentary evidence.  The Board found it incredible that a small business starting with loans of two million rupees and the burden of hefty interest would be viable or profitable.  It considered it unnecessary for him to carry all his stock with him everyday to and from work and incredible that he would have carried on his business without taking out insurance against theft or robbery.

7.  On his own evidence, the Applicant had only been assaulted by one moneylender in a chanced encounter in which he suffered no serious injury; he had moved to Kolkata and stayed there for four months without any trouble from any of the moneylenders; and that his family was never harmed by any of the moneylenders.  The Board rejected his belief that the four moneylenders had influence over the police as his own speculation.  It found on authoritative and credible country of origin information (“COI”) that adequate state protection is available in India.  It was the Applicant’s choice not to report the assault and threats to the police and not that he had sought police assistance and was denied.  It also found internal relocation a feasible option to avoid any risk of harm from the moneylenders.  The Board therefore came to the conclusion that there was no real chance that the Applicant will be harmed or otherwise ill-treated by the four moneylenders, if he is refouled.

8.  Applying the law applicable to the non-refoulement protection under the USM to the facts found, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

9.  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[6].

Grounds for judicial review

10.  The Applicant did not advance any grounds for judicial review in his Form 86 or his supporting affirmation.  At the hearing, after the legal principles in the preceding section were explained to him, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these vitiating elements in its anxious scrutiny of the Decision.

Overall scrutiny

11.  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 applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 

12.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  It found the Applicant’s case incredible and full of implausibility; but it did not dismiss his claim on that basis.  It went further and assessed his claim on the basis of the COI and the case as he asserted.  It found even on that basis, there was no real chance that the Applicant will be harmed or otherwise ill-treated by the four moneylenders, if he is refouled.  The Board gave reasons for its finding.  It was on that basis that it found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of fact and of the law.  Insofar as these are finding of the law, they are absolutely correct.  Insofar as these are finding of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had 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

13.  For the above reasons, on its own motion, the Court amended the Form 86, but the leave application as amended 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