MOHAMMED HAFIZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1678/2018

[2019] HKCFI 2147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1678 OF 2018

Application for Leave to Apply for Judicial Review

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

Following;

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who last entered Hong Kong on 26 September 2003 and was allowed to stay as a visitor for two days.  The applicant did not leave Hong Kong as required and overstayed. Just over four years later he was arrested for an immigration offence of overstaying in Hong Kong.  He lodged a torture claim in December 2007 which was rejected by the Director of Immigration (“the Director”) on 12 March 2012.  He did appeal this decision but his appeal/petition was dismissed on 8 May 2012.  

2.  When the Unified Screening Mechanism was introduced, the applicant’s claim was considered under other applicable grounds.  His claim was assessed pursuant to the following grounds under that mechanism, namely, risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”), his BOR 3 risk and risk of persecution as well as a BOR 2 risk.  The Director dismissed his claim on 27 August 2015 with that last applicable ground dealt with by way of a notice of further decision dated 9 December 2016.

3.  He filed an appeal/petition against those decisions of the Director with the Torture Claims Appeal Board (“TCAB”).  The TCAB held a hearing on 7 March 2017 but the applicant elected not to give evidence during that oral hearing.  The adjudicator of the TCAB dismissed his appeal/petition on 13 August 2018, thereby confirming the decisions of the Director.

4.  The basis of his claim was that if he were to return to India, he would be harmed or killed by a Mohammed Hanif because the applicant had borrowed money from Hanif and failed to repay him in time or at all.  In April 2003, the applicant borrowed 500,000 Indian rupees with a 5% interest chargeable each month.  The agreement was that he was to return to thousand Indian rupees by the first instalment with the balance paid once he had made a profit from his business.  He intended to come to Hong Kong to buy goods to sell at home in India for a profit.  He came to Hong Kong in September 2003 with an agent who cheated him; he disappeared with all of the money that he had borrowed from Hanif.

5.  Hanif went to the applicant’s family home and threatened to kill the applicant if he did not return the money immediately.  The applicant’s family did not report these threats to the police as the moneylender was on good terms with the police; the family were not convinced the police would take any action.  The applicant did not go home and from 2003 to 2011 and the moneylender went regularly to the family home to look for the applicant.  He even demanded that the applicant’s sister marry him as repayment of the debt but the family refused.  The applicant remained in Hong Kong in fear of his life.

6.  He met another Indian man in Hong Kong in 2009 and be friended him. He asked Anwar to lend him $500 on in one occasion but he was refused.  He stole a stolen necklace from Anwar in October 2009 but was arrested by the police the following month and charged with burglary.  He was sentenced to a term of imprisonment by a Hong Kong court.  Whilst serving this term of imprisonment he found out that Anwar was in fact a close relative of the moneylender in India, Hanif.  He was convinced that Hanif had set him up to serve a term of imprisonment in Hong Kong.  Once released from prison, he met Anwar who threatened him on numerous occasions.

7.  The adjudicator, as did the Director, analysed the applicant’s claim under the three remaining applicable grounds;

a.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

b.  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

c.  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.  The adjudicator treated the appeal as a rehearing.  He correctly set out the law and key legal principles for the three applicable grounds.  He set out the applicant’s evidence in detail as well as his consideration and analysis of it.  The applicant did not give evidence during his appeal/petition so the adjudicator considered the information provided by the applicant in his questionnaire and evidence given to the Director.  The adjudicator found the evidence conflicting, with discrepancies and unbelievable.

9.  He did not find the applicant credible nor a genuine claimant.  However, he went on to say that even if he did believe the applicant, his evidence did not amount to a claim that could succeed on any applicable ground.  The adjudicator found the applicant was unable to show he was at risk of CIDTP or persecution if refouled to India. He had failed to show that returning to his country of origin would expose him to a real risk of a violation of his rights to life so as to constitute a breach of BOR 2.

Leave to apply for judicial review

10.  The applicant has sought leave to judicial review the decision of the TCAB.  He has filed an affirmation in support but it does not contain any grounds.  A reading of the adjudicator’s decision makes it clear that he reconsidered the applicant’s evidence without the benefit of the applicant electing to give evidence during the appeal.  It is clear that he found reasons to reject his evidence and find him unreliable.  He nonetheless, did apply the law and key legal principles to the evidence on the basis that it was credible and still concluded that the appeal should be dismissed.

11.  I have considered the adjudicator’s decision with rigorous examination and anxious scrutiny as required.  I see no fault in the adjudicator’s decision‑making process.  I do not see any error of law made by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

12.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

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