HOSSAIN AEJAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1186/2020

[2022] HKCFI 2629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1186 of 2020

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 filed on 15 June 2020 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 2 June 2020 (the “Decision”).  In the Form 86, the words “USM” were written in the field for proposed respondent and the words “Torture Claims Appeal Board” were written in the field for interested parties.  The decision in respect of which relief was sought was not identified other than by a date.  Hence, leave was granted to amend the Form 86 to make the Board the proposed respondent; the Director of Immigration (the “Director”) an interested party; and the Decision the decision in respect of which relief was sought.

2.  In response to the Court’s letter dated 23 June 2022 inviting for submissions, the Applicant replied by letter dated 28 June 2022 denying he had ever made the leave application.  He also complained that he had been unjustly convicted and assaulted by officers of the Correctional Services Department.  An oral hearing was scheduled for the Applicant.

3.  At the hearing, the Applicant repeated his allegation that he had never made the leave application.  He admitted his signature on the Form 86 but insisted that he was told to sign it in blank and that he had never paid the filing fee.  He admitted he had made an application for non-refoulement protection; that the application was refused; that he appealed to and attended a hearing before the Board in March 2020; that he was arrested and held in various correctional services institutions.  He said he had heard nothing from the Board and is still waiting for the outcome of his appeal.  He was explained that the Board had dismissed his appeal by its Decision dated 2 June 2020.  Then, he said he disagreed with the Decision and admitted making the leave application.  He was explained the legal principles applicable to judicial review and he indicated he understood.  Then, the Court stood down for the Decision to be interpreted to him by the court interpreter and for him to prepare for the hearing.

The background

4.  The Applicant is an Indian national, now aged 56.  He had visited Hong Kong since 2012.  He last entered Hong Kong on 17 January 2017 as a visitor and was permitted to remain until 4 February 2017.  He overstayed and surrendered to the authorities on 16 February 2017.  On 19 April 2017, he raised a non-refoulement claim.

5.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 6 February 2018, the Director rejected his claims under all four applicable grounds.  His appeal against the Notice was dismissed by the Decision of the Board.  He sought leave to apply for judicial review of that Decision.

The Applicant’s case

6.  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, if returned to India, he would be harmed or killed by his business partners because he failed to start a business with them in Hong Kong.

7.  The Applicant was born in Kolkata, India.  He is separated from his wife and he has two children in India.  He obtained a Bachelor degree in Kolkata in 1989 and has 26 years of working experience.  He started a finance and commodity trading company in Hong Kong under the name of Innertech International Limited (“Innertech”) in 2012.  He had four other partners. Three of them, including Roshan Jain (“RJ”), are members of the Bharatiya Janata Party (“BJP”) which is the ruling political party in India.  His partners are powerful and influential.

8.  The Applicant moved in and out of Hong Kong on numerous occasions between 2012 and 2016 to explore business opportunities, using a travel pass issued by the Immigration Department.  All his expenses in Hong Kong were provided by his partners.  In November 2016, on RJ’s invitation, he returned to India to attend a business meeting in Lalit Hotel in New Delhi with his partners and two of their clients, namely Societe Merignac LTEE and Sheldon Holdings Investments Inc (“Sheldon”).  Those two clients wanted to act as guarantors for the Applicant’s partners to obtain a loan facility in Hong Kong for a total of €1.1 billion and to share in the profits of his business.

9.  The Applicant returned to Hong Kong on 10 November 2016 and began working on their business plan.  He said he “needed to wait until early 2017 in order to have the transactions being started”.  However, his travel pass was due to expire on 4 February 2017.  On 23 January 2017, he was informed by the Immigration Department of changes in its Visa regulations for Indian visitors. He was required to return to India to apply for a pre-approval from the Indian government before coming to Hong Kong.

10.  When he explained the situation to his business partners, they became very angry because they had incurred a lot of expenses on his business in anticipation of substantial profits but the business had not made any profit.  RJ shouted at him on the phone and threatened to kill him, if he chose to return to India.  The Applicant was scared to return and became an over-stayer.  On 24 February 2017, his wife informed him on the phone that RJ and his men had been to his home in Mumbai and threatened to kill him if he returned to India.

11.  The Applicant produced the following documents in support of his claim:

(1)  a document headed ‘Letter of Confirmation’ on the letterhead of Citibank (Switzerland) AG, Zurich with an attached bank draft in the amount of €100 million made out to Societe Merignac LTEE dated 24 November 2016;

(2)  a document headed ‘Corporate Resolution’ on the letterhead of ‘Sheldon Sholdings [sic] Investments Inc’ dated 30 January 2017 which purports to record a resolution by Sheldon to appoint the Applicant as its Financial Controller in respect of an account in the name of Sheldon for an amount of €1 billion with the Royal Bank of Scotland in London;

(3)  documents purporting to be certificates of company registration for Sheldon in the British Virghin Islands and Innertech in Hong Kong; and

(4)  a document purportedly issued by the Royal Bank of Scotland showing the balance in Sheldon’s account of €1 billion for the period 1 January to 27 January 2017.

12.  The Applicant claimed that it would not be safe for him to return to India because RJ and the other business partners would kill him.  He did not believe the police would protect him because his business partners were well-connected with BJP and the Indian police, and BJP would use their connection to locate him anywhere in India.

The finding of the Board

13.  The Applicant testified at the hearing before the Board.  In his original claim, he claimed to have operated a business in Hong Kong since 2012 and produced a certificate of incorporation for Innertech.

14.  Other than those documents mentioned in paragraph 11 above, the Applicant could not produce any documents or bank account to support his business activities in Hong Kong. He explained that was because as he could not obtain loans from the banks as planned his business had no operation between 2012 and end of 2016.  As he could not produce the necessary documentation to verify the financial status of his business, his application to renew his travel pass was refused.

15.  When questioned about the lack of documentation supporting his business relationship with his partners, the Applicant said that those documents were destroyed by the owner of the guesthouse where he stayed when he was evicted.  He said if the Board insisted he would obtain them from his partners.  The Board doubted the sincerity of his evidence as it was his case that he will be killed by his partners if he returned to India.

16.  The Board also doubted the genuineness of the ‘Corporate Resolution’ as there was a misspelling of the company’s name in the letterhead.  The Applicant responded that the document represented a genuine offer to guarantee a loan of up to €1 billion to him and asserted that when the loan was granted, the names of his business partners would be put forward to the lending bank in the form of guarantees for those loans.  The Board disbelieved that as his assertion is contrary to the normal banking practice which would require such guarantees to be produced before any loan would be approved.

17.  In view of the above observations, the Board found the Applicant’s claims and his evidence at the hearing have no credibility whatsoever.  It considered it implausible for a business of the kind and scale he claimed could operate without any documentation whatsoever.  The Board found his claim to have been involved in an international trading and finance company with a number of prominent Indian businessman and his claim of feared harm from them to be untrue.  The Board rejected the entirety of the Applicant’s case as implausible.  It found he had failed to prove the factual basis in support of his claim for non-refoulement protection.  Hence, it dismissed his appeal and upheld the decision of the Director in the Notice.

Legal principles applicable to judicial review

18.  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]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, procedural unfairness and irrationality.

Grounds for judicial review

19.  The Applicant did not put forward any grounds of aplication in his Form 86 or supporting affirmation.  At the hearing, the Decision of the Board was explained to him through the interpreter.  Despite having been explained that he could challenge the Decision on the basis of error of law, procedural unfairness and irrationality, he was unable to advance any specific grounds of application other than his disagreement with the Board’s finding of fact.

20.  He disputed the Board’s finding that he did not have a bank account.  He said his company had bank accounts with Bank of China, Hang Seng Bank and Industrial and Commercial Bank of China.  The Board asked him if he had any accounts showing the operation of his business from 2012 until the end of 2016, he said he had no as he had not actually done any business because he had not yet obtained any bank loans.  The Board specifically asked him if he could provide evidence that Innertech had a bank account.  He said he could not but that he had a bank card for his personal account.  That was his evidence before the Board[6]. Thus, on the basis of his evidence, the Board found the Applicant could not produce any accounts showing the operation of his business from 2012 until the end of 2016.  That finding was based on the Applicant’s evidence and could not be criticised at all.

21.  The Applicant disputed the Board’s finding that he did not produce any documents.  That was not the finding of the Board.  The Board had listed the documents he produced[7]. It discussed those documents with the Applicant.  What the Board found was that the documents did not support his case, not that he did not produce any documents.

22.  He also disputed the Board’s finding that it would be safe for him to return to India.  He said that his business partners are strong, influential and will harm him.  What the Board found was the Applicant’s evidence was incredible and hence he failed to prove the factual basis in support of his case.  In short, the Applicant failed to prove his life would be at risk if returned to India.

23.  Not only are these disputes put on the wrong basis, they are challenges against the finding of fact by the Board which is not permissible in a judicial review.  In the absence of proper grounds of review, the court could only focus on the usual challenges in a judicial review such as error of law, procedural unfairness and irrationality.

Discussion and conclusion

24.  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 clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice.  It correctly identified the factual and legal issues involved in the claims.

25.  The Applicant’s claims are founded on his fear that he will be harmed or killed by his business partners because they had funded his business expenses in Hong Kong for four years in anticipation of substantial profits but his business failed to generate any profit.  The Board had carefully weighed the evidence and assessed the Applicant’s credibility.  It found him incredible and his evidence inherently improbable.  As the Applicant bore the burden of prove of his claims, such a finding was fatal.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM.

26.  The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are 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.  There were no such vitiating elements in the Decision.  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

27.  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] 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

[2] 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”)

[3] 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

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap  383

[5] [2018] HKCA 524 at para 14(1)

[6] Paragraph 22 of the Decision

[7] Paragraph 17 of the Decision