MOHAMMED KALIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2934/2018

[2022] HKCFI 2687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2934 of 2018

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 refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 10 December 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 October 2017(the “Notice”).  Though the Director is named as a proposed respondent in his affirmation dated 20 December 2018, no relief is sought in respect of the Notice or any decision of the Director. 

2.  The Applicant is an Indian national, now aged 51.  He entered Hong Kong on 1 October 2015 as a visitor and was permitted to remain until 15 October 2015.  He overstayed and surrendered to the authorities on 16 October 2015.  On 8 March 2016, he raised a non-refoulement claim.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds 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 30 October 2017, the Director rejected his claims under all four applicable grounds.

4.  He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 10 December 2018, the Board dismissed his appeal.  He now seeks leave to apply for judicial review of that Decision.  He did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that he would be harmed by his creditors, Altamaz Ali, Zahir Ahmed and Shushti Das (collectively, the “Creditors”) upon his return to India for defaulting on the loan owed to them.

6.  The Applicant was born in Kolkata, West Bengal, India.  He is single and has five years of education and thirty years of working experience.  He had a shop in Kolkata selling electronics products and garments.  He frequently travelled to Hong Kong to buy goods to sell in his shop.  He encountered cash-flow problems in around 2010 and 2011 and borrowed 500,000 Indian Rupees each from Altamaz Ali and Zahir Ahmed and 1 million Indian Rupees from Shushti Das.  There was no agreement as to the amount of interest and the Creditors asked him to pay whenever he made some profit.  All three Creditors live in the same area as he did.

7.  In 2013, his employee stole 2 million Indian Rupees worth of goods from him.  He made a report to the police in Watgunj area, but the police said they could not help as they could not locate the employee.  Towards the end of 2014, his goods were seized by the customs at Kolkata Airport because he had no money to pay duties levied upon the goods.  He lost 300,000 Indian Rupees as a result.

8.  The Applicant became bankrupt and closed down his shop at the beginning of 2015.  Before he did, he had returned around 700,000 to 800,000 Indian Rupees to each of his Creditors. But they claimed that money he paid was only sufficient to cover the interest and he had to pay the principal of the loans in full.

9.  The Applicant did not pay. His Creditors sent gang members almost every week to harass him and demand repayment.  They made threats to him and assaulted him but he managed to escape from them on every occasion.  The Applicant suffered tremendous pressure and went to live with his friend in Santosphur, Kolkata in around March 2015.  He accidentally ran into Shushti Das in the market.  Thus, he moved to another friend’s house in Akda, Kolkata where he stayed until September 2015.

10.  The Applicant thought of returning to his home and settle the dispute with his Creditors because he could not hide in his friend’s home forever.  Before he made the journey home, some policemen found him in his friend’s home at about 1:30 am.  They took him out on their patrol all night and advised him that Shushti Das had made a police complaint about the loan and he better find a way to repay Shushti Das or Shushti Das would make up some cases against him to have him arrested, or seriously harmed.

11.  The Applicant alleged that Shushti Das was a Member of Legislative Assembly and the counsellor in Khidderpore District who had connections with the All India Trinamool Congress and influence over the police.

12.  After the incident, the Applicant decided to flee to Hong Kong to avoid his Creditors.  After his arrival in Hong Kong, his mother told him that the Creditors kept visiting his home in India to search for him.  One day, the Applicant went into Altamaz Ali in Hong Kong.  Altamaz Ali threatened to kill him upon his return to India if he did not pay back.

13.  The Applicant did not believe that internal relocation would be viable or police protection available as the police took no action despite he had made a report in Watgunj area about the threats from the Creditors.  Further, Shushti Das had influence over the police.  He also believed he would not receive police assistance or protection without paying a bribe.

The finding of the Board

14.  The Board found the Applicant’s behaviour inconsistent with his claimed fear.  He had made about ten trips to Hong Kong between 1 October 2013 when his problems with the Creditors started and 1 October 2015 when he last arrived in Hong Kong.  He never sought non-refoulement protection which reflected that did not genuinely believe he was in danger.  When he allegedly came to Hong Kong for protection, he did not make a claim immediately, but waited until his visitor permit had expired.  The Board rejected his explanation that he was not aware of the availability of non-refoulement protection in Hong Kong because it is not credible that he would not have made enquiries during any of his previous ten trips to Hong Kong or at once on his last arrival.

15.  The Board found the Applicant’s story about the threats from the Creditors was never consistent.  While alleging in his NCF that he was in fear of harm from all his three Creditors, he did not mention the threats from Altamaz Ali in his Written Signification or the threats from Altamaz Ali or Zahir Ahmed in his Notice of Appeal/Petition.

16.  The Board also considered it inherently improbable that the Creditors would have extended loans for such significant amounts without any written agreement, collateral or agreed interest rate.

17.  The Board therefore found that the Applicant had failed to establish the factual basis to support his claim of fear and risk under any of the applicable ground under the USM.  That was sufficient for the Board to dismiss his appeal.

18.  However, the Board went further.  Even assuming that the case as asserted by the Applicant were true, the Board found he had failed to show, if returned to India, that the ill-treatment he would face attains a minimum level of severity and that he would face a genuine and substantial risk of being subjected to such ill-treatment; that the ill-treatment meets the requirements of torture as defined in section 37U(1) of the Immigration Ordinance; that his Creditors were state actors; and that the ill-treatment was inflicted by public officials or persons acting in an official capacity.  It also found that if he is ill-treated on his return to India, it will not be for any reasons protected by the Convention relating to the status of Refugees and its 1967 Protocol.

19.  On the basis of credible Country of Origin Information, the Board found that it was the Applicant who chose not to take steps to remedy the situation and not that state protection would not be available to him.  It rejected the Applicant’s claim that the Creditors were so powerful that they could locate him anywhere in India.  It found that, as an able-bodied adult with 30 years of work experience, he could mitigate the threats from his Creditors by relocating to Mumbai or Delhi.  

20.  Applying the law applicable to non-refoulement protection to the facts found, the Board found the Applicant was not entitled to protection under any of the four applicable grounds under the USM.  It therefore dismissed his appeal against the decision of the Director in the Notice.

The legal principles applicable to judicial review

21.  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, absent specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

22.  The Applicant did not put forward any grounds of application in his Form 86.  He had been invited by the Court via its letter dated 14 October 2020 to advise the Court of his first language, contact number and to file submissions.  He did not respond.  The letter was sent by post on 14 October 2020 to his address stated in his Form 86.  It has not been returned through the post.  He had never informed the court of any change of address. There is nothing to suggest that he had not received the letter or had moved.  He is deemed to have waived his right to make further submissions.  

Discussion

23.  The essence of the Applicant’s complaint is that he disagreed with the Board’s finding of fact that he will not face any real harm or risk of harm on his return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact which is not permissible.  In the absence of proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  

24.  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.  Primarily, the Board found the Applicant incredible and rejected his case.  He had failed to prove the factual basis in support of his claim to non-refoulement protection.  It also made the further finding about the ill-treatment he would suffer on his return to India on the basis of the case as asserted by him.  Even on that basis, the Board could only reach the same conclusion.  It was on that basis that the Board found the Applicant had failed to prove the factual basis in support of his claim for non-refoulement protection under any of the four applicable grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. This is a finding of fact solely 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.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicants’ claim is not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

25.  For the above reasons, the application for leave to apply for judicial review is refused.

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

[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)