SABIR MOHAMMAD SHAHBAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1447/2019

[2024] HKCFI 1112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1447 of 2019

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 20 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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 36, is an Indian. He entered Hong Kong as a visitor on 2 December 2014. He overstayed since 17 December 2014 and was arrested by the police on 10 January 2015. The applicant made a non-refoulement claim by written representation on 12 January 2015. The claim was made on the basis that, if refouled, he would be ill-treated or even killed by his clients, namely Shankar Yadav (“Yadav”), Visvejeet Lala (“Lala”), Sanjay Gupta (“Gupta”) and their associates because of a money dispute.

5.  The applicant claimed that he set up his business for shirt buttonhole making and shirt button fixing in December 2011.  He rented a factory from Yadav, who was a wealthy businessman and was also a member of Bharatiya Janata Party (“BJP”). Lala and Sanjay were rich businessman too and the former was a member of All India Trinamool Congress (“AITC”). Yadav, Lala and Sanjay were the applicant’s clients. They sent shirts to him for making buttonholes and fixing buttons.

6.  In February 2013, a fire broke out at the applicant’s factory, which damaged a large number of shirts belonging to Yadav, Lala and Gupta. Besides, certain machines in the factory owned by Yadav were also burnt down. As a result of the fire, Yadav, Lala and Gupta suffered great loss and they demanded the applicant to make compensation within two months.

7.  In around April 2013, Yadav came to the applicant’s home with a few men demanding compensation, failing which he would kick the applicant’s family out of the area. The applicant then went to Yadav’s office to discuss the matter. No compromise however could be reached and the applicant was assaulted by Yadav’s men. The applicant did not seek medical treatment nor did he report the assault to the police. In May 2013, the applicant relocated away from his hometown to avoid Yadav, Lala and Gupta. A few days later, he saw two men on each of the motorcycles wearing clothes with the BJP logo. Upon confirming the identity of the applicant, they started to punch and kick him. The applicant found out during the assault that they were sent by Yadav.  He was taken to a clinic by his friend and it took him a week to recover. The applicant then moved to New Delhi and stayed with his friend for 4-5 days before moving back to his hometown. Thereafter, he travelled to Hong Kong on different occasions to look for business opportunities, the last occasion of which was on 2 December 2014.

8.  The applicant maintained contact with his family while staying in Hong Kong.  He was informed that Yadav, Lala and Sanjay had sent people to his house looking for him from time to time.

9.  The applicant was of the view since Yadav, Lala and Sanjay were wealthy businessmen and that the former two were even politically associated, the authorities would not dare to pursue them. He also considered internal relocation within India not viable because Yadav, Lala and Sanjay could utilise their strong political and business networks across the country to locate him.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 29 December 2017 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that a huge part of the applicant’s claim was based on hearsay evidence. Furthermore, the applicant’s failure to seek assistance at his earliest opportunity was also inconsistent with the behaviour of a person genuinely in fear for life [11].

13.  In any event, the Director considered that (i) the low intensity and frequency of past ill-treatment from Yadav, Lala and Sanjay indicated that the applicant did not face a real and imminent risk of harm upon his return to India [11]; (ii) state protection is available to him upon his return [12]-[16]; (iii) internal relocation is viable [17]-[19] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [20]-[26], Persecution risk [27]-[32] or Torture risk [33]-[35].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  On 13 November 2018, the Board conducted an oral hearing.

15.  During the hearing, the applicant claimed for the first time that his elder brother was beaten up by BJP workers in 2013 before the applicant came to Hong Kong. The applicant believed the attackers were sent by Yadav, Lala and Sanjay because all three of them were BJP members. His brother did report the assault to the police but they refused to accept it [47]-[48].

16.  The Board noted that there were multiple occasions previously for the applicant to disclose the assault on his brother, but he failed to do so. They also noted that the applicant claimed in the hearing that Yadav, Lala and Sanjay were all BJP members while he claimed previously that only Yadav was a BJP member. The Board was of the view that the applicant was lying about the assault on his brother and did not find him to be a credible witness [49]-[58].

17.  In any event, the Board found that the applicant’s case failed to meet any of the requirement under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [12]-[24], [60]. Further, internal relocation is also available to him [61]-[66]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

18.  The applicant has filed Form 86 dated 28 May 2019 for leave to apply for judicial review of the Board’s Decision.

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

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.

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 the reasons given in paragraphs 15-17, the Board rejected the applicant’s evidence on the facts of his case and further found that state protection and internal relocation would be available to him if he returns to India. The reason in paragraph 19 is only his general comment without any evidence in support. It is not a valid reason to challenge the Board’s Decision.

24.  There is no reason that the Court should interfere with the Board’s finding of the facts. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

25.  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