RAHMAN ZUBAIR v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE

HCAL 2803/2018

[2021] HKCFI 3266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2803 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.     This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim for non-refoulement protection.

2.     The Applicant, a male born in 1988, is a national of India.  He first arrived in Hong Kong as a visitor in November 2007, leaving after 3 days stay.  He re-entered Hong Kong in December 2007 and departed to Mainland China in January 2008.  One day later he re-entered Hong Kong from China and departed towards the end of January 2008.  He last arrived in Hong Kong on 21 November 2008 and was permitted to stay as a visitor until 5 December 2008.  He overstayed and has remained in Hong Kong since.

3.     The Applicant was arrested on 8 December 2008 by the police for overstaying and referred to the Immigration Department.

4.     On 11 December 2008, he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment (“CAT”) (“CAT Claim”) and was released on recognizance on 18 December 2008.

5.     On 7 November 2013, the Immigration Department rejected his CAT Claim.

6.     The Applicant made a non-refoulement claim under the Unified Screening Mechanism (“USM”) by way of written representation dated 22 November 2013.

7.     The Applicant then made an application to the Director for non-refoulement protection under the USM by submitting a Supplementary Claim Form (“SCF”) on all applicable grounds.  The SCF was dated 3 October 2017 and submitted with assistance from a case officer at the CAT office.

8.     The Applicant was interviewed in respect of his USM claim on 16 October 2017.

9.     By a Notice of Decision dated 24 October 2017, the Director refused the Applicant’s USM claim finding that they were not substantiated.  In that Notice of Decision the Director stated that as the Applicant’s torture risk detailed in his CAT claim had already been considered and assessed, the applicable grounds considered in respect of the USM claim did not include the risk of torture as defined in Part VIIC of the Immigration Ordinance.

10.     On 6 November 2017, the Applicant appealed to the Board against the Director’s decision.

11.     On 12 November 2018, the Board rejected the Applicant’s appeal on all the applicable grounds under the USM for non-refoulement protection confirming the decision of the Director.

The Applicant’s case

12.     The Applicant is a Sunni Muslim born in Kolkata, India and his first language is Hindi.  He had 11 years of education and worked as a salesperson in Kolkata.  He is unmarried.  His parents, a brother and a sister are all in India.

13.     The basis of the Applicant’s case is that he fears for his life in India because of a land dispute with his neighbour, Mohammed Yunus (“Yunus”) and Yunus’ two sons, Fayaz and Tinku.

14.     It is the Applicant’s case that Yunus is involved with the Communist Party of India (Marxist) (“CPI(M)”)

15.     The dispute with his neighbour arose because Yunus and Yunus’ 2 sons objected to the Applicant building another storey to the Applicant’s house.  The Applicant claimed that Yunus’ 2 sons beat him twice. The Applicant had complained to the police but they did not assist.

16.     Both incidents when the Applicant was beaten by Yunus’ sons occurred on 19 November 2008.  On the earlier part of that day, Fayaz and Tinku had a quarrel with the Applicant’s father and Fayaz squeezed the neck of the Applicant’s father.  When the Applicant pushed Fayaz away, Fayaz punched the Applicant in the face.  Fayaz and Tinku then threw stones at the Applicant’s family and their construction workers.

17.     Later that evening, the Applicant was ambushed by Tinku when the Applicant was going home.  Tinku slapped the Applicant who fought back.  Suddenly 4 to 5 men, who were friends of Tinku appeared.  One held a pistol and two held hockey sticks.  They hit the Applicant who tried to escape.  When he was running, he heard a gunshot.  The Applicant’s right shoulder was hit by a hockey stick.  The Applicant ran to a friend’s home to hide.  The mother of his friend treated the Applicant’s wound for him.

18.     The Applicant stayed at his friend’s home for 2 days then came to Hong Kong.

The Director’s decision

19.     By a Notice of Decision dated 24 October 2017, the Director rejected his non-refoulement claim based on all the applicable ground save and except that torture risk was not assessed by reason that it had been previously dealt with in the Applicant’s CAT claim which was final.  The Director did not accept that the Applicant and real and personal risk of ill treatment of sufficient severity to bring it within BOR 3 risk.  The Director further did not accept that the Applicant faced a real or personal risk of being arbitrarily deprived of his life under BOR 2 risk.  As for persecution risk, the Director assessed that it was a personal dispute between the Applicant and his neighbours and had nothing to do with “race, religion, nationality, membership of a particular social group or political opinion”.  Moreover, the Director found that state protection and internal relocation were available to the Applicant.

The Board’s decision

20.     The Applicant appeared before the Board in an oral hearing held on 6 September 2018.  During that oral hearing, the Applicant gave inconsistent and contradictory account of important and significant matters which he had earlier stated in documentary form.  The Board dealt in detail with these contradictory and inconsistent accounts from the Applicant in paras. [14] to [43] of the Board’s decision.  In particular one significantly important part of the Applicant’s contradictory and inconsistent evidence related to the first incident when in the first incident he made no mention of his father’s neck being squeezed by Fayaz and made no mention of Tinku or the Applicant’s father being present at the first incident, but rather that it was his mother who was being pushed in the first incident.  He also said that a shot was fired in the air during the first incident.

21.     There were numerous other contradictions and inconsistencies all of which had been taken into account by the Board in its decision.  The cumulative effect of all these significant inconsistencies led the Board to doubt the truth of the central aspects of the Applicant’s claim and to come to a conclusion such that the Board was not satisfied that the Applicant faced any risk of harm in India for any of the reasons the Applicant has claimed.  Specifically, the Board did not accept that the Applicant was ever involved in any conflict with anyone including his neighbours for any reason including any land or building dispute.  The Board further did not accept that anyone has harmed or targeted him or any member of his family for any reason, nor that anyone in India has any interest or intention to harm the Applicant for any reason in the foreseeable future.

22.     On that basis, the Board found that the Applicant’s claim unsubstantiated for BOR 2 risk, BOR 3 risk and also for persecution risk.

Discussion

23.     The relevant principles on appeals in non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decisions of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidcenc and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

24.     When the Applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review : Re Moshsin Ali [2018] HKCA 549.  Therefore while the court examines the decision of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

25.     In this case, the Board came to the conclusions it did due to the numerous and significant inconsistent and at times contradictory evidence given by the Applicant at the hearing before the Board when that evidence was compared to what the Applicant had previously stated in the documents before the Board including his interview.

26.     Those were factual findings of fact which is entirely within the province of the Board to make.

27.     It has been said time and again that factual findings on the evidence, the risk of harm and availability of state protection as well as internal relocation are primarily the province of the Board and the Director and is not for this court to usurp those functions of the Board unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

28.     The present complaint raised by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board.

29.     Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered the three available ground (with the exception of torture risk which had been dealt with in the CAT claim) separately and distinctly and has dealt with the merits of each limb individually.

30.     It must also be accepted that no appeal having been lodged by the Applicant in respect of the decision of the Director in respect of CAT claim previously brought by the Applicant, that decision of the Director must be final.

31.     The decision reached by the Board cannot be said to be in any way unreasonable.  Nor can the court see any error of law, procedural unfairness or irrationality in the decision of the Board.  There is no reasonably arguable basis to challenge the findings of the Board.

32.     For the reasons given, there are no prospect of success in the Applicant’s intended application.  Accordingly, the court refused to grant leave 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