CHHETRI RAHUL BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1683/2019

[2024] HKCFI 2386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1683 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 16 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing.  He appeared before the Court on 5 August 2024.

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

The applicant

4.  The applicant, aged 38, is an Indian.  He entered Hong Kong as a visitor on 27 December 2014 and overstayed since 11 January 2015.  The applicant surrendered to the Immigration Department on 13 January 2015 and made a non-refoulement claim on 17 March 2015.  The claim was made on the basis that, if refouled, he would be seriously harmed or even killed by his creditor (“the creditor”) because he failed to repay the loan owed to him.

5.  According to the applicant, he had been running a garment business for children.  At the end of 2013, one of his customers failed to pay after taking the goods from him.  Such payment default caused the applicant to run into a great financial trouble, so that he had to take out a loan from the creditor.

6.  The applicant was able to make repayment for around six months.  He started to default in payment in around July 2014, shortly after which the creditor and his underlings came to threaten him verbally.  In August 2014, they went to the applicant’s shop and slapped him on his face, threatening him that he must repay the outstanding loan within 15 days.  On the following day, the creditor and his underlings even went to the applicant’s home and pushed his father to the ground.

7.  Upon the expiry of the 15-day period, the creditor and his underlings came to the applicant’s home again.  They beat him up and vandalised his house.  They also pushed his father onto the ground.  The applicant suffered bruises and fractures, while his father lost consciousness and suffered from a brain hemorrhage.  Both of them were taken to hospital.  His father subsequently passed away in October 2014 due to throat cancer and the applicant believed that the attack had weakened his health.

8.  Upon discharge from the hospital, the applicant went to hide at his friend’s home for two weeks.  Eventually he left India for Hong Kong in December 2014.

9.  The applicant maintained contact with his family.  He was informed that the creditor and his underlings went to his home to enquire his whereabouts every day. They also threatened to kill him if he returned to India.

10.  The applicant was of the view that he could not seek protection from the police because they were corrupt and he had no money to bribe them.  He also considered internal relocation not viable because the creditor and his underlings would be able to find him wherever he went within the country.

11.  Details of the applicant’s story can be found in paragraph 5 of the Director’s Decision dated 9 July 2018 (“the Director’s Decision”).

The Director’s Decision

12.  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”).

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the creditor indicated a low future risk of harm upon his return to India [12]-[13]; (ii) state protection would be available to him [15]-[19]; (iii) internal relocation would be viable [14], [20]-[26] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[38] or Torture risk [39]-[41].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  On 10 May 2019, the Board conducted an oral hearing.

15.  During the hearing, the Board found the level of vagueness and incoherence in the applicant’s evidence was significant [24].  The Board considered that his account of events was unreliable, given the inconsistencies in his evidence regarding (i) his date of birth; (ii) purpose of his loan; (iii) name of the creditor; (iv) whether he had reported the matter to the police; (v) political affiliation of the creditor and (vi) details and circumstances of the debt collection incidents [25]-[31].

16.  Based on such findings, the Board was of the view that the applicant was simply putting forward an account he previously learnt but had then forgotten, so that no credence could be attached to anything he claimed [33].  It concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [35]-[38].  

17.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

18.  The applicant has filed Form 86 dated 19 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In his affidavit in support of his application, the applicant said he is not satisfied with the Board’s Decision without raising any ground to challenge the Board’s Decision.

DISCUSSION

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said the Board did not accept his evidence and asked me to review the Board’s Decision.

22.  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.”

23.  For those reasons given by the Board above, the Board refused to accept the applicant’s evidence in support of his claim.  The applicant has not raised any valid reason to challenge the Board’s Decision.  There is simply no reason for this Court to interfere with the Board’s Decision.

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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