RAHMAN RIZAUL v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2356/2018

[2022] HKCFI 3040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2356 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 19 October 2018 (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of India. He entered Hong Kong on 31 December 2013 and was permitted to stay as a visitor until 14 January 2014. He did not depart and had overstayed since 15 January 2014. On 25 January 2014, he was arrested by the police for overstaying. On 27 January 2014, he lodged a claim under Cruel, Inhuman, or Degrading Treatment and Punishment (“CIDTP”). His CIDTP claim was taken as a non-refoulement claim. He claimed that, if refouled, he would be harmed or killed by his moneylender Lala Bishwajit Roy (“Roy”).

5.  In brevity, the applicant’s claim presented before the Director was that he borrowed a loan from Roy for his garment trading business. However, his goods were forfeited by the customs for being undeclared goods and his business was forced to close down. The applicant defaulted the payments. Roy threated to kill him. As Roy belonged to an influential political group, the applicant feared that the threat would materialize. As a result, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 25 July 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  It is noted that the applicant failed to attend the screening interviews without reasonable explanation and the Duty Lawyer Services also informed the Immigration Department that they no longer acted for the applicant. In this light, the Director assessed the applicant’s claim on the available documents.

8.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the dispute with Roy was a private one without state involvement [18]-[20]; (ii) state protection would be available to him [21]-[23]; (iii) the ill-treatments from Roy, if any, did not attain a minimum level of severity [24]; and (iv) internal relocation was a viable alternative [25]-[29].

9.  Further, in the Notice of Further Decision dated 22 December 2016, the Director also rejected the applicant’s claim on BOR 2 risk on the basis that his right to life would not be violated if refouled (the “Director’s Second Decision”).

10.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

11.  The applicant appealed the Director’s Decisions to the Board. On 18 May 2018, the Board conducted an oral hearing for his appeal.

12.  Having considered the relevant legal principles and the applicant’s evidence, the Board made the following findings. First, the loan was between the applicant and Roy without the involvement of the political group or the state. Meanwhile, the applicant was not harmed by Roy given that he had the opportunity to do so [32]. Secondly, the applicant’s claim lacked credibility as he was unable to provide details of the loan or the information about Roy [33]-[39]. Thirdly, the country of origin information supported that state protection would be available to the applicant [43]-[53].

13.  In these circumstances, the Board refused to accept that the loan was connected with the political group. It also rejected the existence of the loan and the threats from Roy. Even taking the applicant’s claim to the highest, the Board found that he failed to prove that Roy intended to cause serious harm or kill him or that the ill-treatments had attained a minimum level of severity. In any event, the threats or harms were localized [60]-[76].

14.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 25 October 2018 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, the applicant did not set out any ground.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

20.  There is no valid reason to challenge the Board’s Decision.

21.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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