ALAM MD AFTAB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2275/2018

[2022] HKCFI 2393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2275 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.  The applicant applies for leave to apply for judicial review of the Decision dated 26 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of India.  He entered Hong Kong on 9 January 2014 as a visitor and was permitted to stay until 23 January 2014.  He did not depart and had overstayed since 24 January 2014.  On 10 February 2014, he surrendered to the Immigration Department for overstaying.  On 20 August 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by (i) Akash Chaudhary (“Akash”) and (ii) Ashok Lal Chaudhary (“ALC”).

5.  According to the applicant, he joined the young wing of Communist Party of India (Marxist) (“CPIM”) in 2005 and was later promoted to the position of general secretary.  One of his duties was to recruit new members from other schools.  Meanwhile, their opposition party, the young wing of All India Trinamool Congress (“AITC”), whose general secretary was Akash, also wished to recruit new members.  In 2008, the applicant was attacked but also revenged against Akash’s group due to a dispute over the posters.  Later, they also got into group fights over posters.  Between 2009 to 2010, when AITC won the village council election, they once damaged CPIM’s office.  Meanwhile, the applicant was assaulted by a council member because he questioned the reason for his disqualification in a quiz game.  Afterwards, when the applicant needed an affidavit supporting his residency in the village, the village council refused to help him but instead framed him for criminal offenses.  The applicant was detained for several days, during which he was assaulted by the police officers.

6.  After his release, the applicant went to another village to study and work.  In February 2013, he returned home with the intention to start his own hardware store.  He had no choice but to borrow money from ALC, who was a AITC member and also Akash’s father.  The applicant’s business was successful and thus he wished to negotiate better terms of the loan with ALC.  ALC refused and threatened to take his money.  The applicant’s complaint to the police of no avail.  As the applicant failed to give ALC the profits in accordance with the terms of the loan, ALC started chasing him for money.  Thereafter, the applicant was imprisoned, assaulted and threatened on different occasions by ALC and his elder son.  Not only that, ALC worked with the police officers and caused troubles to the applicant and his wife.  The applicant was again detained and tortured in the police station.  Out of fear, in October 2013, the applicant fled to other villages for protection, before eventually came to Hong Kong to seek international protection.  Details of his claim are set out at paragraphs 12 to 80 of the Notice of Decision dated 2 September 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

7.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  The Director scheduled screening interviews for the applicant’s claim. Nevertheless, despite giving him ample opportunities, the applicant failed to complete the screening interviews due to his health problems.  As a result, the Director proceeded to determine his claim on the available documents [5]-[11]. The Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk on the basis that the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [86]; (ii) state protection would be available to him [87]; and (iii) internal relocation was a viable option [88].

9.  For reasons set out in the Notice of Further Decision dated 15 August 2017, the Director also found that the applicant’s right to life would not be violated upon refoulement and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

10.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

11.  The applicant appealed the Director’s Decisions to the Board.  The Board conducted an oral hearing for his appeal on 4, 11 and 31 July 2018, during which he was legally represented [10].

12.  Having considered all the evidence, the Board found that the applicant’s claim lacked credibility, and, even taking his claim to the highest, he had failed to establish a non-refoulement claim [12].  The Board considered that several material aspects of the applicant’s claim failed to stand up to scrutiny.  In particular, the Board noted that the applicant gave vague or contradictory accounts in relation to CPIM.  It was also unreasonable that the applicant would borrow the loan from ALC who was the father of his claimed enemy.  Alternatively, he could not produce the documentary evidence for the loan nor the documents supporting his multiple court appearances in his home country [37].  Besides, the applicant’s evidence contradicted the country of origin information (“COI”) [38]-[41].  Thus, the Board refused to accept his political affiliation [42].  Further, the Board found that the alleged village council election was inconsistent with the COI [43]-[49].  In addition, the Board refused to accept the applicant’s documents as it was either self-serving or inconsistent [50]-[61]. 

13.  Insofar as the loan was concerned, the Board found that there was no evidence on the loan nor the existence of the applicant’s shop [63]-[69].  He also failed to provide cogent explanation as to why he would borrow the loan from ALC and why the loan agreement was allegedly signed in English [70]-[73]. In any event, there was no evidence on the existence of ALC [74]-[75].  As to the police station detentions and the framed charges, the Board considered them to be implausible and without proof [76]-[88].  In short, the Board concluded that the applicant’s claim was inconsistent, deficient and incoherent [93]. Alternatively, the Board concluded that the disputes were from personal vendetta and that the alleged injuries were not serious [95]-[108].  In any event, state protection and internal relocation were both available to the applicant [110]-[125]; [155]-[158].      

14.  For the above reasons, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 19 October 2018 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, the applicant said the Board’s Decision is unfair and unreasonable.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

20.  There is no valid reason to challenge the Board’s Decision.

21.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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