Mohammed Jawed v. Director of Immigration and Another

HCAL 196/2017
[2018] HKCFI 199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 196 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Bruno Chan):  

1.The applicant is an Indian national who came to Hong Kong on 7 May 2010 with permission to remain as a visitor for two weeks until 21 May 2010.  He overstayed illegally until 10 June 2010 when he was arrested by police and was later referred to the Immigration Department. On 14 June 2010 he lodged his claim for non-refoulement protection with the Director of Immigration (“the Director”) on the following grounds, namely (1) risk of torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) (“Torture Risk”), (2) risk of harm under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 Risk”), and (3) risk of persecution (“Persecution  Risk”) on the principles under Article 33 of the 1951 Refugee Convention relating to the Status of Refugees (“RC”).  His claim was rejected by the Director on 16 December 2015. 

2.On 28 December 2015 the applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) and requested for an oral hearing but prior to that hearing the Director by a letter dated 27 January 2017 invited him to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds including risk of loss of life under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR 2 Risk”) on or before 10 February 2017, which he did not, and on 14 February 2017 the Director again rejected his claim.

3.In determining the applicant’s appeal/petition on all applicable grounds including those under BOR 2, the Adjudicator of TCAB conducted an oral hearing on 6 March 2017 in which the applicant attended in person.  On 10 April 2017 TCAB rejected his appeal/‌petition, and the applicant filed a notice of application for leave to apply for judicial review on 10 May 2017 without requesting for an oral hearing, and I therefore considered his application on papers.

4.The basis of the applicant’s claim was that if he were to return to India he would be harmed or killed by a Mr Chotka who was a supporter of the Trinamool Congress Party (“TMC”) and the leader of a gang involved in illegal activities including drug trafficking, and who blamed him for taking a job which Chotka considered to be his, and so he demanded the applicant to pay him half of his earnings as compensation, and when the applicant refused he was threatened, and fearing for his life he therefore fled to Hong Kong.  The details of his claim and evidence have already been set out in the decisions of both the Director and the Adjudicator of TCAB, upon which I propose to summarize only the relevant parts as follows.

5.The applicant was born on 21 February 1984 in West Bengal, India as the eldest son to his parents with two younger siblings and all of them lived in India.  He became a long-time supporter of a political party known as CPI(M) at an early age, and upon completing Class 8 in a government school in 2001 he started working in wholesale and trading business in electronic goods with frequent travels to Hong Kong and China, and from 2007 to 2010 he worked for Visakha Ship Suppliers in Visakhapatnam, Andhra Pradesh, India where he was later promoted to be a supervisor which required him to travel to Haldia Port in Kolkata, West Bengal whenever there were orders.  It was this job that Chotka considered should have been his.

6.Between 2005 and 2010 the applicant and his friends had had several nasty run-ins with Chotka and his gang in Kolkata not strictly related to his alleged fear of Chotka, during which he and his friends were assaulted and sustained minor injuries.  It was during the last incident in 2010 when Chotka made his demand for compensation with threats against the applicant who however did not report to the police as TMC was in power and hence he claimed that they would not do anything, and that he feared Chotka would take revenge against his family, and so he fled Kolkata to return to Visakhapatnam.

7.Eventually the applicant returned to work in Kolkata in April 2010 when one night he was out for a drink with a friend Mr Papu, Chotka appeared with his gang and attacked them with knives and baseball bats during which Papu was cut with knives while the applicant was hit with baseball bats.  The applicant subsequently escaped to hid in a friend’s home where he was given some painkillers but the attack was not reported to the police, nor did he seek medical treatments for the pain and bruises on his back and legs for fear of being found by Chotka as TMC was in power.

8.The applicant returned home on the next day but was told by his family that Chotka and his gang had come looking for him the night before during which his home was vandalized and his family was threatened that he would be killed if he failed to pay him the money demanded.  He was also told that his friend Papu had died and was advised by his family to stay away. He therefore went hiding with a friend Mr Imran until end of April 2010 when he decided to move to New Delhi with the relatives of Imran, but soon he was told that Chotka was coming for him in New Delhi, he was therefore advised by Imran to come to Hong Kong, which he did on 7 May 2010 where he was subsequently arrested for overstaying and lodged his non-refoulement protection with the Immigration Department.

9.In determining the applicant’s claim the Director analyzed all applicable grounds including Torture Risk, BOR 2 and 3 Risks and Persecution Risk with the assessment taking the following structure:

(a) how likely would his feared treatment materialize;

(b) consideration of the claimed BOR 2 and BOR 3 Risks;

(c) consideration of whether the claim called for persecution non-refoulement; and

(d) consideration of the claimed torture risk under Part VIIC of the Immigration Ordinance, Cap 115.

10.Firstly, the Director after taking into account all the relevant circumstances of the applicant’s claim assessed the level of risk of harm from Chotka and his people upon the applicant’s return to India as low given that Chotka had made no further attempts to track him in Visakhapatnam or New Delhi or to escalate the level of threats towards his family, and thus did not accept that he would be subject to real risk of being harmed or killed by Chotka or his people, or that such risks were imminent.

11.Secondly, regarding the applicant’s claim that the authorities in India would not help or protect him from Chotka’s threats or harms, the Director pointed out the fact that he had never filed any complaints to the police, that even if bribe were to be demanded from him by the police for protection as alleged, it would likely be limited to certain individual officers, as it does not follow that those threats from Chotka and his people or TMC supporters would necessarily be instigated by or have the consent or acquiescence of a public official or other person acting in an official capacity of the State, of which the Director went on to consider the applicant’s assertion in the context of objective Country of Origin Information (“COI”) Report on India, and concluded that with reforms and improvements on-going in India with objective indications of positive results in recent years, and with alternative avenue to seek justice in India, the applicant’s assertion that he would be unable to seek protection from the government from the threats or harms from Chotka and his people upon his return to India was not supported by the latest COI reports (as set out in the Appendix to the Director’s Notice of Decision dated 16 December 2015).

12.Thirdly, the Director assessed that internal relocation alternatives are available and reasonable which further lower or negate the applicant’s perceived risk, given the fact that India is a large country with a population of 1,251 million people who are all free to move throughout the territory and to settle in any part thereof.

13.The Director then assessed the applicant’s claim of being subjected to BOR 3 Risk upon his return to India and found that for the same reasons he had been unable to satisfy the high threshold of meeting the main requirement that he would face a genuine and substantial risk of being subjected to ill-treatment inflicted by Chotka or his people, nor was he able to establish any persecution risk as his feared ill-treatment did not fall within the definition of “persecution” as it was regarded as purely a criminal act in the context of money extortion, blackmail and assault committed by Chotka and his people arising from personal grudges which have nothing to do with any of those reasons required for non-refoulement claim, or that such risk was assessed to be small and that his fear not well-founded.

14.As for the Director’s consideration of torture risk as defined under section 37U(1) of the Ordinance, again for the same reasons he found the applicant’s claimed risk of ill-treatment to be small and did not accept that there are substantial grounds for believing that he will be subject to torture or harm by Chotka or his people and/or TMC supporters as claimed upon his return to India, nor were there substantial grounds to believe that further action by Chotka or his people or TMC supporters will be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  The applicant’s non-refoulement claim was rejected on 16 December 2015.

15.As noted above and upon being invited by the Director to submit additional facts and information relevant to his non-refoulement claim including any other absolute and non-derogable rights including right to life under BOR 2 and BOR 2 Risk, which the applicant did not, the Director having considered those relevant provisions of BOR 2 and in the absence of additional information from the applicant found that he had failed to establish a personal and real risk of his absolute and non-derogable rights including right to life under BOR 2 being violated upon his return to India, again rejected his non-refoulement claim on 14 February 2017.               

16.When the appeal/petition came before TCAB the Adjudicator treated it as a rehearing of the applicant’s claim by analyzing all the same applicable grounds.  He also conducted a hearing on 6 March 2017 attended by the applicant in person who however elected not to answer questions or give evidence.  In his decision the Adjudicator first set out the applicable law and relevant legal principles upon which he was to consider, analyze and assess the applicant’s claim, which he did under all applicable grounds as the Director before him.

17.Firstly, the Adjudicator found the applicant’s claim under “Torture Risk” failed as his stated facts were mere bare assertions which did not show physical or mental pain or suffering as defined for torture under Article 1 of CAT, that Chotka and his people were supporters of TMC did not help as his claim as the case was about private grudge, and as he never reported any of those alleged incidents to the police and hence there was no evidence of official acquiescence by the Indian Government or authorities, nor did the stated facts establish substantial grounds showing a foreseeable and real risk.  

18.The Adjudicator also found that independent of the above reasons the appeal would still fail as the relevant COI reports which he summarized in his decision showed that it would be safe for the applicant to return to India at least other than his home village, of which the applicant chose to remain silent at the oral hearing and gave no comments or evidence about this issue.

19.As for his consideration of both BOR 2 Risk and BOR 3 Risk, the Adjudicator found that the applicant had not suffered severe injury or serious harm within the criteria of Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance or of risk of loss of life under Article 2 thereof, that there would be no substantial risk to his life, and that in any event as the Adjudicator had found above that it would be safe for the applicant to return to India, hence it was held that the claim under both BOR 2 Risk and BOR 3 Risk failed.

20.The Adjudicator also considered the requirements for non-refoulement under Persecution Risk and for the same reasons found that the applicant had not suffered the kind of severe injury or serious harm which would place him within the criteria of Persecution, that there was no substantial ground to believe he will face any future risk of serious harm, and that it would be safe for him to live in India, hence he found that his claim under “Persecution Risk” also failed.

21.Lastly the Adjudicator addressed the issue of credibility by stating that whilst he found the applicant’s appeal to have failed independently of that issue as the applicant chose not to answer questions at the oral hearing, including those listed in his decision which he found relevant to the claim which the applicant did not initially raise on arrival in Hong Kong until his arrest, which were concerns that he felt as significant regarding the applicant’s credibility and reliability as those questions were left unexplained by the applicant who had the burden of proof, which the Adjudicator was entitled to be of the view that he had not properly discharged.  Accordingly the Adjudicator dismissed the applicant’s appeal and confirmed the Director’s decision.

22.I now come to consider the applicant’s application for leave to judicial review the TCAB’s decision, of which I must do with rigorous examination and anxious scrutiny.  In his Form 86 and supporting affirmation dated 10 May 2017, the applicant seeks to essentially rely on two grounds, namely that it was unfair to dismiss his claim under BOR 2 Risk when he was never given the opportunity to submit the relevant information in support of his claim, and that it was procedurally unfair to dismiss his claim due to the Adjudicator’s failure to carry out sufficient research and inquiry into the COI conditions or to take into proper account or weight on information relevant to his claim.

23.In support of his first ground the applicant claimed in his affirmation to have never received the letter dated 27 January 2017 from the Director referred to above inviting him to submit additional facts, if any, which he might consider relevant to his claim on all applicable grounds for non-refoulement protection including right to life under BOR 2 and BOR 2 Risk, which only came to his attention after he received the Director’s Notice of Further Decision of 14 February 2017 informing him so (paragraph 1) and that in the absence of additional information from him it was considered that he had failed to establish any risk under BOR 2 upon his return to India (paragraph 6).

24.However in the same affirmation the applicant went on to state that he did receive the letter but when he tried to submit further information to the Immigration Department the week before his affirmation he was refused and hence in the absence of such information he argues that it was unfair to reject his claim.  He however never explained or clarified how and when he received the letter.

25.A careful reading of the affirmation can perhaps explain this apparent contradiction, and by putting his case at the highest, which is that the applicant may indeed not have received the letter of 27 January 2017 and hence did not learn about the invitation to submit further information until he read the Director’s Notice of Further Decision of 14 February 2017 which he would have received shortly after and in any event before his oral hearing on 6 March 2017 before the TCAB.

26.If indeed that was the case, and that he had intended to submit additional information that would support his claim, it cannot in my view explain why he did not do so at that hearing on 6 March 2017, or if he had needed more time or assistance to produce the additional information, it cannot explain either why he did not inform the Adjudicator and seek an adjournment of the hearing to enable him to do so, but instead chose to remain silent and not answer any question during the hearing as recorded by the Adjudicator.

27.Instead it was only until he filed his affirmation in support of his application for leave to apply for judicial review on 10 May 2017 when he introduced additional information alleging that after he fled from India, both Chotka and the opposite political party had continued to look for him and threatened his family, in particularly the following assertions: 

“ Last year they went to my place and they had tortured my family and they get mad while he failed to get information about my whereabouts. My family refused to tell them my location. They came along with many of his fellow men and they had burnt my home and tortured my family, in result of which one member of my family get injured and few days later my cousin sister was died in result of this torture. My mother also gets serious injuries and police did not investigate honestly because of his influence with the other sect and they had bribed money to police. Police had misled the investigation to an accident because of their influence to the political party and had bribed money and I had lost my cousin sister who came to visit my home and we could not get any justices. These incidents show that I would still have face life threat risk upon return to my home country…”

28.If true these would indeed pose very serious risks to the applicant upon his return to India, and which no doubt he would have disclosed, at length and in details knowing the importance of their implications on his claim, to the Adjudicator at the hearing on 6 March 2017 as these incidents were said to have occurred as recently as only the year before the hearing. Yet the applicant somehow elected not to answer questions or to give any evidence at that hearing, for which I agree that the Adjudicator was entitled to raise question about his credibility.  In the premises there was in my judgment no unfairness when his claim was refused in the absence of any additional information from the applicant which he had had ample opportunity to do but chose not to, and hence there is simply no arguable ground to review the Adjudicator’s decision on information or materials which were never before him at the hearing.   

29.As for the second and remaining ground, the applicant accuses the Adjudicator and/or the Director of failing to take into account or put sufficient weight on what he claims to be highly relevant information found in the limited COI research cited in his decision and which were overwhelmingly in his favor or supportive of his claim, but instead put full weight on those of little or no relevance, and of failing to evaluate or make finding of fact as to whether there exists in India a consistent pattern of gross or flagrant abuse or violence against the minorities.

30.The quick response to this is that these are again just bare assertions by the applicant without any particulars in support, and as pointed out by the Adjudicator he instead chose to remain silent at the oral hearing and made no comments or argument about the COI.  However, and bearing in mind of a high standard of fairness required in assessing the applicant’s claim, a close and objective examination of not only the relevant COI summarized by the Adjudicator in his decision but also the earlier one referred to by the Director reveals that there is simply no merit in those bare assertions of the applicant that he would be unable to seek protection from the Indian government from the threats from Chotka or any of his TMC supporters if indeed those threats still exist or that he would be harmed or killed upon his return to India, and given that the applicant had chosen not to make any comment or argument on the COI, the Adjudicator was entitled to express doubt that Chotka would bother to locate him all over India, and to find that as an able-bodied young man with ample working experience the applicant would be able to live safely anywhere else in India than his home village.  

31.In conclusion I do not find any ground that shows any error in law or procedural unfairness on the part of the Director or the Adjudicator, nor any failure to apply a high standard of fairness in their assessment of the applicant’s claim.  In the premises and for the reasons given, I am not satisfied that this application is reasonably arguable, and accordingly I refuse leave for judicial review.

Dated the 30^th day of January 2018.

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