ALI ASRAF v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 6/2018

[2020] HKCFI 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 6 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 refused.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of India who last arrived in Hong Kong on 11 June 2014 with permission to remain as a visitor up to 25 June 2014 when he did not depart and instead overstayed and was arrested by police on 28 June 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  He has since been released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ekbalpur, Kidderpore, West Bengal, India. After leaving school he worked as a printer and in late 2013 or early 2014 he intended to start his own printing business with a friend KL, and to do so he borrowed 1 million Indian Rupees from a money-lender repayable within two years of a total sum of 1.5 million Indian Rupees inclusive of interests.

3.  As the Applicant was busy in setting up the business, he therefore asked KL to receive the loan from the money-lender, but when KL disappeared with the money,the Applicant informed the money-lender of the same and that he might not be able to repay him, the money-lender became furious and slapped him on the face several times and threatened that he must find his friend to get back the money.

4.  Several days later when the Applicant was still unable to find his friend KL, the money-lender sent several men to his home who damaged his furniture and threatened him that if he still failed to repay his loan he would be killed.

5.  On the next day when the Applicant went to ask the money-lender for more time to repay his loan, he was punched on the face and was locked up in a room for two days during which he was not given any food or water, and only on the third day when he was released and was given one month to repay his loan with a warning that he would be killed if he still failed to do so.

6.  However, after one month when he was still unable to find KL or get any money to repay his loan, the Applicant decided to stay away from India on 28 March 2014 for China and then Hong Kong until 4 April 2014 when he returned to India, but when he heard that his creditor was still looking for him everywhere, he feared for his life as the money-lender was a powerful and influential man with political connections, he therefore departed India again on 8 June 2014 for China, and on 11 June 2014 he arrived in Hong Kong where he overstayed and subsequently raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 26 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 12 May 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that risk of harm from his creditor is real and foreseeable due to the low intensity and frequency of past ill-treatment from him whose real intention was just to force him to repay his loan, that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and 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 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with work experience to move to other part of India away from his home district in large cities such as Mumbai or New Delhi where it would be difficult if not impossible for his creditor or his associates to locate him.

9.  By a Notice of Further Decision dated 4 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submitadditional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 19 May 2016, and for which he attended an oral hearing on 17 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found the Applicant’s past experiences as alleged in the hands of his creditor and his men did not amount to torture or attain the minimum level ofseverity under any of the applicable grounds, that his dispute with his creditor was a privatematter with no suggestion that any state actors had been involved and hence state protection would be available to him, as well as internal relocation alternatives for him to relocate to other part of India such as Mumbai or Delhi to avoid any further risk of harm from his creditor that his non-refoulement claim for protection failed on all applicable grounds.    

12.  On 2 January 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1)  irrationality—failure to consider the concept of state acquiescence;

 (2)  procedural impropriety—insufficient inquiry and failure to provide adequate reasons for its decision;

 (3)  procedural impropriety/unfairness—failure to investigate the Country of Origin Information of India;

 (4)  irrationality—failure to place weight on relevant information and/or selectivity placing weight on irrelevant information;

 (5)  irrationality—failure to consider a consistent system of human right violation;

 (6)  irrationality—failure to consider if state protection exists in India;

 (7)  irrationality—placing weight on irrelevant matters or on inaccurate or incorrect facts;

 (8)  procedural impropriety—failure to call for psychological and/or psychiatric reports and/or evaluations;

 (9)  procedural impropriety—applying the incorrect standard of proof;

 (10)  no reasonable basis for rejecting his claim on credibility;

 (11)  failure to consider the extended form of state acquiescence;

 (12)  failure to fully consider the COI reports in assessing the risk to the Applicant;

 (13)  irregularity in that the decision-maker for the Board being a different person that the interviewing Immigration Officer; and

 (14)  no proper basis for consideration of internal relocation. 

13.  These are however all just broad and vague assertions of the Applicant with a few key words or phrases but without any particulars or specifics or elaboration as to how they applied to his case, or how the Board had erred in its decision, or in what way was state acquiescence relevant to his claim, or why were psychological/psychiatric reports necessaryfor his case, or how the Board failed to consider the COI relevant to his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant,and as such I do not find any basis or merits in any of them or that they are reasonably arguable for his intended challenge.

14.  As for his complaint that his appeal before the Board was not heard by the same immigration officer, I fail to see any rationale behind this complaint, as the mechanism forhis appeal before the Board which is a rehearing of his claim to be before a different personis actually a safeguard for fairness, and I fail to see how he could be prejudiced or adverselyaffected by the process before the Board.  There is simply no merit in this complaint of the Applicant either.

15.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

16.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17.  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.

18.  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