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

HCAL491/2017

[2018] HKCFI 484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 491 of 2017

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 (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who entered Hong Kong on 13 September 2013 and was permitted to remain until 27 September 2013.  He overstayed and surrendered to the Hong Kong police on 7 October 2013.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 24 March 2016 and 8 May 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 1 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 8 August 2017 and requested an oral hearing which was set down for 19 January 2018.  The applicant appeared in person having had his application for legal aid rejected.

2.  The basis of his claim was that if he were to be refouled to India he would be tortured and killed by two men, Faiyaz and Shah.  These men were his maternal uncles and they ran an unlicensed moneylending business.  Both the Director and the adjudicator of the TCAB set out the applicants claim and evidence in full and in detail in their decisions therefore, I only intend to summarise it here.

3.  The applicant was born in 1991, grew up in West Bengal, had 12 years of education and in 2010 joined a leather business.  He married in 2012.  In 2003, the applicant’s mother had passed away and prior to her death, her two brothers had lent the applicant’s father Rs. 150,000 to settle her medical bills.  In 2009, his father remarried and the two moneylenders then demanded he repay that old loan with interest but he was unable to repay anything but some of the interest.

4.  The applicant said he was the legal owner of the house that they lived in but his father settled the loan by transferring it to the two uncles to settle his debt.  They then charged the applicant’s father rent to live in it.  Not long after, the applicant’s father moved out.  The two uncles demanded the applicant pay Rs.4000 to rent the house.  He paid it for a few months until he could no longer afford to pay it.  In early 2011, the two uncles demanded the applicant move out or else he would be assaulted.  After that, the applicant was often threatened, visited at night by men harassing him and then on six separate occasions he was beaten up by his two uncles.  On each occasion the injuries he suffered was not severe.  He tried to report them to the police but was ignored as they were rich powerful men.  They were connected to the Trinomial Congress Party.

5.  He lived under enormous stress, had insomnia and suicidal thoughts.  In 2013, his friend suggested he leave India and go to Hong Kong.  He spent Rs.32,000 arranging his journey.  He left India on 12 September 2013.

6.  The Director and the adjudicator analysed the applicant’s claim under all applicable grounds;

(a)   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, (“torture risk”);

(b)   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, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   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

(d)   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 hearing as a rehearing.  She correctly set out the law and the key legal principles applicable to the four grounds.  She considered the applicant’s oral evidence, previous interviews and non-refoulement claim form.  During the appeal hearing, the applicant told her that his two uncles demanded he repay them a further 800,000 Indian rupees to settle his father’s loan.  His brother was not targeted by his uncles because he did not work and had no money to repay them.  However, he is now their target so has moved to Mumbai.  The applicant said their house had been paid for by his father although he had previously said he legally owned it. He also said he legally owned it jointly with his brother.

8.  The adjudicator analysed the applicant’s claim and evidence, and found on the applicant’s own facts that the level of risk of the applicant being subjected to torture or even the risk of death if refouled was low.  He said the loan had been repaid when his father transferred the house to his two uncles.  When his father moved out, his uncles did not ask the applicant to make any further repayment of the loan but only demanded payment of rent from the applicant.  When he stopped paying rent, they only harassed and assaulted him to try and evict him from the house. It was not related to the repayment of the loan.

9.  Therefore, if he has moved out then there is no reason for either uncle to continue to harass or assault him if he returns to India.  If the root of the problem was his illegal occupation of the house because he did not pay rent, then they will not torture or kill him so long as he does not illegally occupy the house.  The adjudicator did not believe or accept the applicant’s evidence that his uncles were still demanding further repayment of the loan, a further Rs. 800,000 which was over five times the value of the loan.  This was despite the applicant’s father having transferred the house to the uncles many years ago.  This demand has only arisen since the applicant has been in Hong Kong.

10.  It also transpired that he had travelled on many occasions between India and mainland China between late 2012 and early 2013 working as a paid courier for a friend before he decided to leave India to seek protection for his safety.  This did not seem the actions of a man living in fear.

11.  As far as the torture risk is concerned, the adjudicator considered the definition of torture as set out in section 37U(1) of the Immigration Ordinance.  She found on the applicant’s own evidence there were no substantial grounds for believing that he would be subjected to severe pain and suffering, whether mental or physical if refouled to India.  She found his evidence could not apply to the definition and he could not rely on the torture risk; the torture risk claim failed.

12.  She did consider the concept of State acquiescence and extended concept of State acquiescence.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill‑treatment were being committed by non‑State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non‑State officials or private persons.

13.  She considered it and found it not to apply here.  She considered the Director’s detailed account of the Country of Origin information and his analysis of it; leading to his conclusion State protection was available.  She found State protection was available if there was any risk to the applicant.  She also found that internal relocation was a viable option if he was at risk in the vicinity of his old home.

14.  She found that the persecution risk did not apply to the applicant because his fear arose from a personal dispute, a private matter which did not come under the Refugee Convention.  He did not fear being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion.  He could not rely on a persecution risk; this risk claim failed.

15.  As far as the BOR 2 and BOR 3 risk claim is concerned, she found he was not at risk of ill-treatment that reached a minimum level of severity if he returned to India which meant he could not invoke protection under BOR 3; the BOR 3 risk claim failed.  On her findings, he was not at risk of his right to life under BOR 2 being violated therefore, his BOR 2 risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

16.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  She analysed material, claims and evidence with care.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application.

17.  The first ground is essentially a complaint that the applicant was confused at the appeal because he could not afford to have the appeal bundle translated to him.  As a result, he was confused when he appeared at the oral appeal hearing.  There is no merit in this ground when I consider that he raised no issue or complaint with the adjudicator at the hearing.  If he had, the interpreter could have assisted and the adjudicator could have ensured he was not confused before they began.

18.  In the second ground the applicant submits he answered all questions honestly and the adjudicator’s finding on credibility aggravates him.  I am satisfied the adjudicator gave full reasons for his findings of facts; they are reasonable and rational.

19.  Lastly, the applicant accuses the TCAB of relying on out‑of‑date and unofficial Country of Origin information.  He provides no particulars and I find no merit in this ground.

20.  I do not find any ground that shows there was an 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 substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement the applicant’s claim is not reasonably arguable.  There is no realistic adjudicator prospect of success therefore, I refuse 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