MOHAMMED ALAM v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

HCAL 458/2019 [2021] HKCFI 173 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 458 OF 2019 BETWEEN Mohammed Alam Applicant and Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent and Director of Immigration Putative Interested Party Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following: consideration of the documents only; or consideration of the documents and oral submission by the Applicant in open court. Order by Deputy High Court Judge C P Pang: Leave to apply for Judicial Review be refused. Observations for the Applicant: Procedural history and background This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Nonrefoulement Claims Petition Office (“the Board”) dated 23 January 2019, confirming the decision of the Director of Immigration (“the Director”) dated 17 July 2018 refusing the applicant’s claim of non-refoulement protection. The applicant born in 1976 is a national of India. On 3 October 2009, he first came to Hong Kong as a visitor using his Indian passport and was permitted to remain for 14 days. He overstayed and was arrested by the police. On 21 October 2009, he lodged a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). His torture claim was rejected by the Director of Immigration on 25 November 2013 under Part VIIC of the immigration ordinance, Cap 115. He then lodged a claim by a written representation dated 2 December 2013 for non-refoulement protection on the ground of risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”). A Notice to Persons Making a Non-refoulement Claim was served on him on 4 May 2018 in which he was informed that the Director’s previous decision regarding his torture claim filed in 2009 would not be reviewed under the Unified Screening Mechanism (“USM”). His claim for non-refoulement protection was therefore assessed by the Director on all applicable grounds other than risk of torture under Part VIIC of the immigration ordinance, namely, BOR 2 risk, BOR 3 risk and risk of persecution. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [12-25] of the decision of the Board dated 23 January 2019. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his creditor because he could not repay a loan of 500,000 Indian Rupees he borrowed from the licensed moneylender. The moneylender was a member of a political party with power and influence. Since he stopped repaying his creditor in 2007, his creditor assaulted him and kept threatening to kill him if he could not repay the debt. The Director’s decision By a notice of decision dated 17 July 2018, the Director rejected the applicant’s non-refoulement claim. The decision covered BOR 2 risk, BOR 3 risk and the persecution risk for reason that the claim was not substantiated. The applicant lodged an appeal/ petition to the Board against the Director’s decision. The Board’s decision The applicant attended an oral hearing before the Board on 19 October 2018. By Decision dated 23 January 2019, the Board rejected his petition and confirmed the Director’s decision dated 17 July 2018. The Board assessed on BOR 2 risk, BOR 3 risk and persecution risk. The Board gave detailed reasons for rejecting the applicant’s claim at para [28-45] of its decision. In a nutshell, the Board found: there is no basis for the applicant’s fear [29]; the assault incident in 2009 when his creditor slapped him was only a coincidence that he came across the creditor [31]; after the assault incident in August or September 2009, he encountered no trouble from his creditor who was powerful and influential having no difficulty to locate him, the inference is that his creditor did not even bother to look for him [32]; he failed to establish that there are substantial grounds for believing that he would be liable to be subjected to the proscribed harm for the relevant risks [34]; further, internal relocation is a viable option [45]. Application for leave to apply for judicial review The applicant filed a Form 86 for leave to apply for judicial review of the Board’s Decision dated 23 January 2019. He did not request an oral hearing. The application is therefore considered on the papers. The Form 86 did not set out any ground for judicial review. In his affirmation in support of the application, the applicant stated that “I want to appeal against the decision of deputy judge Mr (Kwan Kwok Kuen) Decision to refuse to leave to judicial review this decision is unfair and unreasonable.” (sic) Discussion The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 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 decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence 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. 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 decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on the latter’s decision. The only ground raised by the applicant does not appear to engage with the Board’s decision. The adjudicator presiding the Board is not by the name of Kwan Kwok Kuen. In any event the complaint was just a general and vague assertion that its decision is unfair and unreasonable without any specifics or particulars as to how the Board was unfair or unreasonable in the public law sense. Nevertheless, the court is under a duty to consider the application with rigorous examination and anxious scrutiny. In the present case, the Board rejected the applicant’s appeal/ petition that on the primary facts claimed by the applicant, there is no basis for the applicant’s fear of harm. Moreover, internal relocation is a reasonable and viable option for him. As mentioned above, assessment of risk of harm and viability of internal relocation are primarily within the province of the Board. This court will not interfere with the decision unless there is a public law ground for the court to do so. The fear of the applicant arose from a private loan dispute. Even on his own account, the past ill treatment was of low intensity and frequency. It came nowhere near the level of severity required to constitute torture or CIDPT. Despite the repeated threats by the creditor, the applicant was unable to repay. There was no evidence why the creditor would still wish to pursue him everywhere in India after so many years. India is a big country with a population of about 1.3 billion. Internal relocation is obviously a reasonable option for him. There is no substantial ground for believing that he would be at real risk of any type of proscribed harm, if refouled. The decision of the Board is eminently reasonable. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness. Disposition For the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review. I refuse to grant leave for judicial review. Dated 28 January 2021 (Chung Lai Fan, Christine) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 28 January 2021 Mohammed Alam Applicant’s ref. no: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 January 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12667/18/7/417/IN2526 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 936/13 and QA T/C 2108/18 (Formerly RBCZ/2001811/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1