SHAIKH TAREKH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1046/2017

[2018] HKCFI 1318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1046 of 2017

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 refused.

Observations for the Applicant:

1.  The applicant is a 40-year-old national of India who arrived in Hong Kong on 28 November 2008 when he was arrested by custom officers for trafficking in a dangerous drug for which he was subsequently convicted of the offence and sentenced to 6 months’ imprisonment.  On 10 February 2009 he lodged a torture claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his debts.  He has since been released on recognizance pending determination of his claim.   

2.  The applicant was born and raised in Kolkata, West Bengal, India where his mother, his wife and three children still reside. After leaving school he first worked in a loading container company until 1998 when he became a self-employed garment trader, and subsequently got married and started his own family.  For his business he often travelled to Hong Kong and Mainland China to purchase garment materials. 

3.  In 2007 his business suffered a big loss and he borrowed 1.2 million India Rupees from AD who was a wealthy and influential man in Kolkata and a member of the Congress Party, for which they signed an agreement for the applicant to repay the principal by the sums of 50,000 Indian Rupees every two or three months depending on his business profits with interest payments of 10,000 Indian Rupees every time he came back from his business trips from Hong Kong or Mainland China.

4.  However, in 2008 when the applicant defaulted with his loan repayments, AD started to threaten to kill him if he still failed to repay his loan by October 2008, and when he still failed to do so, AD demanded that he carry some 1.5 kilograms of cannabis to Hong Kong for which he was prepared to forgo the loan and to which the applicant agreed, and as a result the applicant was arrested upon arriving in Hong Kong with the drug on 28 November 2008 and subsequently lodged his non-refoulement claim, and for which he later completed his Non-refoulement Claim Form on 13 April 2015 with legal representation from the Duty Lawyer Services.

5.  By a Notice of Decision dated 6 July 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of violation of his absolute and non-derogable rights under section 8 of the Hong Kong Bill of Rights (“HKBOR”) including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.  In his decision the Director found the low intensity and frequency of past ill-treatment from AD in the past indicative of a low future risk of harm upon the applicant’s return to India, that his dispute with AD was a private matter of which the applicant had never reported to the police, and hence in the absence of any evidence of any involvement of the state or police in AD’s threats, state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the applicant to move to other areas away from his home district such as Delhi where he can safely live and work without any threats from AD.     

7.  On 17 July 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 31 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted that the applicant had been involved in garment trading in Hong Kong, but for the detailed reasons set out in paragraphs 70 – 81 did not find his claim to have been credible, specifically as to his alleged financial problems or his alleged borrowing from AD or of him being threatened or harmed by AD or being forced to traffic drugs into Hong Kong in order to discharge the debt, and that in any event any such threats of harm can be safely and reasonably be avoided by the applicant relocating within India such as Mumbai where he had lived and worked in the past.

9.  On 11 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety for failing to conduct sufficient inquiry into COI of situations in India;

(2)  error or misdirection for failing to consider his fear of being harmed by his enemy; and

(3)  error or misdirection for failing to consider his documents produced in support of his alleged loan agreement with his creditor in the assessment of his claim.  

10.  These grounds in particular the first two are just broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to conduct sufficient inquiry into COI or in which areas were those COI relevant to his claim that the Director or the Board got it wrong.

11.  As for ground (3) in which the applicant complains that the adjudicator had failed to properly consider his loan agreement signed with AD in assessing the risk of harm arising from his failure to repay the loan under the agreement, I note the adjudicator in paragraph 57 of the decision expressed his concerns over the authenticity of the loan agreement when he referred to COI indicating that fraudulent documents are readily available in India according to an Immigration and Refugee Board of Canada (“IRBC”) publication entitled “India: Availability and prevalence of fraudulent identity documents, including membership cards of political parties” which states the following:

“ 1. Common Fraudulent Identity Documents

In correspondence with the Research Directorate, an associate professor of criminal justice at Indiana University, who served in the Indian police force for 17 years and continues to conduct research on Indian criminal justice issues, said that most identity documents in India can be faked and/or obtained by fraudulent means and can be ‘custom ordered in most parts of the country’ ….”

12.  The adjudicator then went on to explain in paragraph 58 that these observations together with his concerns about the loan arrangement may lead him to conclude that the loan agreement may not be genuine, and that he therefore asked the applicant at the oral hearing for his comment to which the applicant was recorded to have replied that it was a situation not just in India but throughout the world, of which I must note that the applicant did earlier confirm that the document was genuine (paragraph 54).

13.  It seems clear however to me from the reasons stated in paragraphs 74 – 81 of the decision that it was the loan arrangement which the adjudicator found to contain what he called numerous credibility concerns based on both the oral and documentary evidence before the Board that led to its decision to reject the applicant’s claim.

14.  It is well established principles that the evaluation of evidence is essentially a matter of the Director or the Board who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, and with the clear findings against the applicant by the adjudicator, who had had the benefit of hearing him in evidence, on the core of his case upon which was based his non-refoulement claim, I do not see how this ground can reasonably be arguable for his intended challenge.

15.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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