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HCAL 1913/2018
[2021] HKCFI 2164
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1913 of 2018
BETWEEN
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Peer Mohamed Varusai Meeran |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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And |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 16 August 2018 (the “Decision”). By mistake, a letter dated 17 June 2021 containing directions for filing grounds of appeal was issued to him as if his application were an application for extension of time to appeal a decision of this Court. The application is one for leave to apply for judicial review of the Decision of the Board made within time.
2. The applicant is an Indian national. He arrived in Hong Kong on 20 March 2014 and was permitted to remain as a visitor until 29 March 2014. He over-stayed thereafter. On 31 March 2014, surrendered to the Immigration Department. He applied for a non-refoulement protection by way of written submissions, claiming that he will be harmed or killed by his creditors if returned to India.
3. In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. By a Notice of Decision dated 22 June 2016 (the “Notice”), the Director rejected all of his claims. The Applicant lodged a notice of appeal against the Director’s decision in the Notice. Before the appeal was heard, the Director issued a Notice of Further Decision dated 10 July 2017 specifically rejecting his claim under BOR 2 Risk ground. The Board heard his appeal against the decision in the Notice and Further Notice on 31 January 2018. On 16 August 2018, the Board dismissed his appeal against the decisions in the two Notices. The Applicant now seeks leave to apply for judicial review of the Board’s Decision.
4. The Applicant did not ask for an oral hearing. Having considered the papers, the Court considered this application could be disposed of by determination on paper.
The Applicant’s case
5. The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service.
6. Soon after his marriage in 2001, the Applicant opened a restaurant in Mannady. The business went well. In 2003, he borrowed a total of 1.2 million Indian Rupees from Devan and Ravi (the “creditors”) to open a second restaurant nearby.
7. Since late 2005, the restaurant business went downhill. The Applicant defaulted in repaying the loan. Devan and Ravi continuously disturbed and harassed the Applicant.
8. In 2006 Ravi together with four to five people (the “subordinates”) and assaulted him knocking off his upper front teeth and cutting his left eyebrow. The Applicant did not report to the police because Ravi was the Area Secretary of All India Anna Dravida Munnetra Kazhagam political party and is politically influential.
9. The harassment became more intense in 2007. The Applicant’s wife tried to immolate herself by setting herself on fire. The Applicant put out the fire, took her to a private doctor for treatment and then treated her at home for about six months before he recovered.
10. The Applicant sold some of his wife’s jewelleries and closed down his restaurants. He paid more than 3 million Indian Rupees for interest. Still his creditors kept chasing after him.
11. Since 2012, the Applicant traded in electronic products and travelled between India, Hong Kong and China.
12. On one occasion, about four to six subordinates went to the Applicant’s house and demanded money. They spoke to him in a threatening tone and said something bad about his wife. His brother attacked them. His neighbours also came to help. The subordinates left.
13. The Applicant went to see Devan and asked for more time to pay. However, Devan said it was his last warning for him.
14. In March 2014, while the Applicant was in Hong Kong for business, he received a phone call from his wife in India. She told him that Devan and Ravi approached her the day following his departure. They told her to tell the Applicant to remit money to India and that they would not spare him and would definitely kill him if he returned to India.
15. The Applicant knew he could not repay and that his creditors would not spare him. He did not believe the police could or would help him because the police were under the supervision of the government and influential politicians. He did not consider he could relocate within India because he had no friends or relatives who could support him. Thus, he fled to Hong Kong on 19 March 2014.
The finding of the Board
16. The Board found the Applicant evasive and not a credible witness. There are glaring contradictions among his evidence in his NCF and his two interviews before the immigration officer. In his NCF, he said he never reported the matters to the police because the police would not help him, would take side with the Ravi who was politically influential and would arrest him on the spot. But in his two interviews and at the oral hearing he said he had made reports to the police and before the hearing, he even produced a copy of his police report.
17. The Board found the Applicant was not a credible witness. Despite that, it found even on the basis of his evidence, he has not made out a case where he needed non-refoulement protection. He told the Board that he no longer feared Devan and Ravi because he could have dialogue with them and that his dispute with them could be solved. He said he was worried about one of the creditors’ surviving subordinates who harassed him and his wife. Four of the five have died. He said that the remaining surviving one has now become less strong and he was told that that that surviving subordinate will also be dead soon. Effectively, the Applicant has no one to worry about. The Board found that neither his creditors nor the five subordinates (now down to only one surviving subordinate) together or separately, never had any intention to cause the Applicant and/or his family any serious bodily harm.
18. Taking into account the nature and intensity of the past ill-treatment inflicted by the creditors and the five subordinates, the extent of injuries the Applicant had suffered, the medical treatment required and that the Applicant later led a normal way of life, the Board considered that the physical harm did not attain a minimum level of severity. The Board considered the Applicant’s evidence does not establish any substantial ground to believe there will be a foreseeable and real risk of harm to be caused by the creditors and the five subordinates.
19. While the COI shows that the efficiency and effectiveness of the Indian police varies from place to place and there is bribery, overall there is an effective criminal system. The Board was satisfied that state protection is available to lower or negate the level of risk. It also found that there was no circumstance that makes it unduly harsh for the Applicant to relocate elsewhere in India.
20. On the above finding, the Applicant has failed to discharge the burden of proving the factual basis to support his claim for non-refoulement protection on any of the four applicable grounds. In addition, the Board found the feared harm and risk do not meet the criteria required for protection under any of the four applicable grounds under the USM.
21. In respect of Persecution Risk ground, the Applicant must prove a well-founded fear of being persecuted for reasons specified under the 1951 Convention Relating to the Status of Refugees, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”). On the Applicant’s case, the reason for his persecution arose out of his inability to repay his loan in a moneylending transaction and not for any of the Convention reasons. His claim falls outside this ground.
22. In respect of BOR 2 Risk ground, the Board held that based on the above founding of fact, the Applicant has failed to establish there is a real risk of danger against his life from the creditors and the subordinates, should he be refouled.
23. In respect BOR 3 Risk ground, the Applicant must prove that the ill-treatment he will receive would attain a minimum level severity and a genuine and substantial risk of being subjected to such ill-treatment. The threshold is very high and it generally involves actual bodily injury or intense physical or mental suffering. For reasons as explained above the Applicant has failed to discharge the burden of proving these requirements. In addition, the Board found he could not show that the Indian government failed to provide him with reasonable protection.
24. In respect of Torture Risk ground, the Applicant bears the burden of proving she will suffer “torture” within the meaning of section 37U of the Immigration Ordinance. One of the requirements of “torture” under the section is that it is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. As the creditors and his subordinates are non-state agents and the government would be able to offer protection to the Applicant, his claim falls outside the Ordinance.
Grounds for judicial review
25. The Applicant disagreed with the Decision of the Board. He did not put forward any specific grounds in his notice of application for leave to apply for judicial review. He only referred to his supporting affirmation filed on the same date in which he exhibited the appeal bundle use at the hearing before the Board.
26. 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, in the absence of specific grounds for application, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness, irrationality, and procedural unfairness.
27. 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. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of state protection and internal relocation. The Board’s 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 are 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
28. For the above reasons, leave to apply for judicial review was refused.
Dated 30th day of July 2021.
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(Allen Lee) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 30/7/2021
Peer Mohamed Varusai Meeran
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30/7/2021
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4072/16/7/42/IN941
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1847/15 (Formerly RBCZ 1685/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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)
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