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

HCAL 1155/2018 [2021] HKCFI 423 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1155 OF 2018 BETWEEN Mohammed Fateh 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 submissions by the Applicant in open court. Order by Deputy High Court Judge K.W. Lung: Leave to apply for Judicial Review be refused. Observations for the Applicant: THE APPLICATION This is the applicant’s application for leave to apply for judicial review of the Decision dated 12 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper. 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 The applicant is an Indian national. He came to Hong Kong on 16 April 2014 as a visitor. He overstayed and was arrested by police. He was referred to the Immigration Department on 5 May 2014. He lodged his non-refoulement claim on 6 May 2014. He claimed that if refouled, he would be harmed or killed by a loan shark called Rishab, from whom he had borrowed money for his business. His business had failed. He was unable to pay the interest on the loan. Rishab chased him for the money and he had assaulted the applicant by slapping his face for half an hour. The applicant did not report the matter to police because he knew that the police were corrupt and Rishab was connected with the political party in India. He simply hid himself up in his friend’s premises. His mother told him that Rishab went to her place looking for him from time to time. Rishab threatened that if he saw the applicant, he would kill him. The Director’s Decision The Director considered her application in relation to the following risks: risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”); 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 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”). By Notice of Decision dated 31 December 2015 (“the Director’s Decision”) and another Notice of Decision dated 9 December 2016 (“the Director’s Further Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that future risk of Rishab would harm him was small [12]; that state protection would be available to him [13 & 14]; that internal relocation was an option open to him [15]. For the reasons stated above, the Director rejected his claim on BOR3 risk, Persecution risk, Torture risk and finally BOR2 risk in his Further Decision. See paragraph 6. The Board’s Decision The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board on 21 February 2017. The Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out in paragraphs 36-48 of the Board’s Decision. Below is a summary of its findings. The applicant was crossed examined by the adjudicator of the Board and he had given inconsistent evidence or was unable to give reasonable explanations to some of the questions put to him. As a result, the Board found that his evidence of borrowing a loan from Rishab was incredible. [37-43] The future risk of Rishab doing harm to him was low. [45] Internal relocation is an option open to him. [46] On the issue of state protection, the applicant did not put to the Board any country of origin information. However, the Board had considered the Director’s Decision in which the Director had set out his consideration of facts for and against the issue of protection of state in India. The Board adopted the Director’s decision that state protection was available to him even if Rishab were to harm him. [48] Application for leave to apply for judicial review The applicant filed Form 86 on 21 June 2018 for leave to apply for judicial review of the Board’s Decision. In his affirmations in support of his application, he did not set out any specific grounds in support of his application other than setting out three exhibits, namely: 1. Documents of the Director of Immigration; 2. Decision of the Torture Claims Appeal Board and 3. Documents of Hearing Bundle. Among these documents, I was unable to find any document, which contained any specific grounds for his application. DISCUSSION The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held: “13. … … 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.” His ground in support of this application has no substance. It does not assist his application. 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. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review. CONCLUSION I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application. Dated the 23rd day of February 2021 (M. O. WONG)(Ms) 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 23 February 2021 Mohammed Fateh 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 23 February 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2954/16/1/77/IN669 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1415/15 & RBCZ 9000789/16 (Formerly RBCZ 1728/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1