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

HCAL 766/2017

[2019] HKCFI 1615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 766 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 be refused.

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

1.  The applicant is an Indian national who last arrived in Hong Kong on 8 August 2005 and overstayed from 13 August 2005.  He was arrested by the police on 1 June 2007.  On 19 June 2007 he filed a torture claim.  On 28 October 2011, the applicant’s torture claim was rejected by the Director of Immigration (“the Director”). On 9 November 2011, the applicant failed to report to the Immigration Department as required and was not arrested again until 24 January 2015.  On 8 June 2017, he submitted a supplementary claim form on all other applicable grounds other than the risk of torture.  

2.  On 8 June 2017, the applicant also informed the Director that he did not wish to rely on the 2007 questionnaire filed by him as well as the two screening interviews conducted in October 2007 and October 2011 respectively.  A further screening interview was conducted on 30 June 2017 and the Director rejected the applicant’s application under the other applicable grounds on 28 August 2017.

3.  The applicant filed a petition/appeal to the torture claims appeal board (“the TCAB”) on 11 September 2017.  He attended a hearing on 2 August 2018 and the adjudicator of the TCAB rejected his appeal/petition on 21 September 2018.  He filed a notice of application for leave to apply for judicial review on 16 October 2017 against both the Director and the TCAB and did not request an oral hearing.  This was filed almost a year before the TCAB decision.

4.  In February 2019, this court wrote to the applicant asking him to state clearly the decision which he intended to review and to file any further documents he wished to rely on in support of his application or any further submissions.  On 4 March 2019, the applicant filed a 2^nd affirmation but it did not contain any grounds to support his application for leave to apply for judicial review.  He only annexed the decision of the adjudicator, the Director and an up-to-date correspondence address.  I will consider the applicant’s application on the papers and will consider the TCAB the proposed respondent.

5.  The basis of his claim is that he would be harmed or killed by a moneylender called Mr Khan because he had failed to repay a loan made in January 2005, over 14 years ago.  He was working as a salesman for his uncle; a salesman in the garment and electronic goods trade.  Between 2002 and 2005 he would often fly to China and Hong Kong to source goods.  In January 2005, in India, he took out a loan from a local, well-known and rich man to expand his own business.  He spent half of the borrowed amount to pay for his sister’s wedding expenses that same year.  He had promised to repay the loan after a business trip to Hong Kong in 2005 but he made no profit and therefore could not repay the moneylender.  He asked the moneylender for more time to repay his debt but his request was refused.  He then received threatening phone calls; the moneylender threatened to kill him if he did not repay the loan.  After hiding and his family being threatened, he thought it was unsafe to stay in India and left for Hong Kong on 7 August 2005.  Both the Director and the adjudicator of the TCAB give full details of the applicant’s evidence and case in their decisions therefore, there is no need to repeat it all here.

6.  The adjudicator, as did the Director, analysed the applicant’s claim under all 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”).

7.  The adjudicator treated the appeal as a rehearing.  She correctly set out the law and key legal principles for the three applicable grounds.  She set out the applicant’s evidence in detail as well as her consideration and analysis of it.  The adjudicator had her doubts about the credibility of the applicant and did give the applicant an opportunity to give explanations and further evidence on discrepancies and anomalies.  These included very basic details about the identity of the moneylender and the amount as well as the terms of repayment of the loan borrowed.

8.  The adjudicator set out in detail why she did not believe the applicant was a genuine applicant.  The applicant confirmed to the adjudicator that he only feared the moneylender and there was no other reason why he did not wish to return to India.  The applicant’s oral evidence in the appeal hearing before the TCAB diffident parts to his earlier evidence given in support of his claim such as, when he borrowed money, how he was threatened and how his parents were harmed after he fled.  The adjudicator found the applicant’s evidence regarding the loan and the moneylender to be vague, general and internally inconsistent.  Essentially, the adjudicator rejected the applicant’s evidence in its entirety.  She went as far as saying that she found that he manufactured the entire claim in an attempt to prolong his stay in Hong Kong.

9.  The adjudicator found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3; he could not prove a persecution risk for a refugee Convention reason for the purposes of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

10.  The applicant has in his Form 86 proposed the respondents to be the Director and the TCAB, even though at that time the TCAB had not yet heard or considered his appeal/petition.  However, the TCAB has now and it is that decision that I will consider.  I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  The applicant has already utilised the channel of appealing director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB.  Anyway, the TCAB looks at it to ensure no errors as it treated his appeal/petition as a rehearing.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the director as well unless in very specific circumstances.  Those circumstances do not arise here.

11.  The supporting affirmation does not set out any grounds against the TCAB.  The only ground is against the Director and that is the decision was made very fast and without properly reviewing his claim, the director refused his application.

12.  In any event, I have considered with rigorous examination and anxious scrutiny the papers of this application and the decision of the TCAB.  I find the adjudicator’s decision to be without fault.  She meticulously analysed the applicant’s evidence, inconsistencies and discrepancies.  She gave full reasons for her finding that the applicant was not a genuine claimant.  I will not interfere with that decision.  I do not find any error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The applicant was given many opportunities to clarify his evidence.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In fact, the same applies to the decision of the Director.

13.  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