Mohammed Moinuddin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 989/2017

[2018] HKCFI 1568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 989 of 2017

BETWEEN

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 the Applicant being absent;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 30-year-old national of India who arrived in Hong Kong with permission to remain as a visitor up to 23 July 2014 when he did not depart and instead overstayed until 6 August 2014 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in City Kolkata, State West Bengal, India.  After leaving school he traded in garment business and is married with a son.  In about September 2012 in order to meet cash flow for his business he borrowed two million Indian rupees from his friend’s father MR, a gangster known to have committed murders and with political connections and influences on the local police, for which the applicant was required to make monthly interest payment at 10% on the principal sum.

3.Initially the applicant was able to keep up with his monthly interest payments to MR, but in early 2013 when he ran into problems with a shipment of his garment and was short in cash, he began to become late with his payments to MR, and by late 2013 when he was in default for several months with his payments, one day he was asked by MR to come to his house where MR had his men beat up someone whom he said also owed him money, and threatened to do the same to the applicant if he continued to default with his payments.

4.However, by January 2014 when the applicant was still in default with his payments, he was again asked to meet MR in a club in Metiaburuz where he was beaten by MR with a cricket bet all over his body and was threatened that he would be killed if he still failed to repay his loan.  After the beating the applicant was taken by his father to the hospital for treatments for bruises, but they did not the matter to the police as they believed that the police were under MR’s influence.

5.In March 2014 when the applicant realized that even with financial assistance from his father he would still be unable to repay the loan to MR, he therefore left Kolkata to hide in his aunt’s place in Bangaluru, but when he heard that MR’s men were looking for him everywhere, the applicant felt that it was not safe for him to remain in India and therefore departed on 8 July 2014 for Hong Kong where he subsequently overstayed and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 18 April 2016 with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 9 September 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.In his decision the Director found the applicant’s dispute with MR a private monetary matter in which neither the state nor the police were involved and hence state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometer that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move safely to other areas away from his home district such as New Delhi or Bangaluru where he had stayed without any incidents before coming to Hong Kong.   

8.By a Notice of Further Decision dated 7 August 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 15 September 2016, and for which he attended an oral hearing on 18 September 2017 before the Board during which he just confirmed the information provided in his NCF and interviews before the Director and that he had nothing further to add or supplement to his claim.  On 12 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board accepted notwithstanding various inconsistencies and implausibilities of his account that the applicant did take out a loan from MR and that he was being pursued by MR for repayment, but as there is nothing in his account that suggests involvement or acquiescence by the police in the conduct of MR of which the applicant complains that reasonable state protection would be available to him upon his return to India, and that there are viable options for the applicant to relocate to other areas within his home state of West Bengal such as Durgapur, Siliguri or Asansol, or even Bangaluru where he had stayed with his aunt before without any incidents, as it is not accepted that MR would be able to locate him in any of those places, hence his claim for non-refoulement protection fails on all applicable grounds.

11.On 1 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)   that the adjudicator failed to consider his claim properly and instead treated it very lightly and found no difficulties in his claim;

(2)   that the Board had committed error and misdirection in law by failing to treat his appeal as a rehearing of his claim;

(3)   that the Board had failed to make its own independent assessment of the relevant COI as to the concept of state acquiescence in the consideration of his claim; and

(4)   that there were procedural impropriety and errors of law in the decisions of both the Director and the Board in rejecting his claim and dismissing his appeal.

12.These are all just very broad and vague assertions of the applicant without providing any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the Board had erred in their decisions, or why is the concept of state acquiescence relevant to his case in the absence of any evidence of any involvement of the state or police in his dispute with MR.  The applicant simply failed to give any explanation or elaboration for any of his grounds or complaints, and that it is also wrong for him to complain that the Board failed to treat his appeal as a rehearing as it is clear from its decision that the Board indeed treated his appeal as a rehearing of his claim.     

13.As it has clearly been established by both the Director and the Board in their decisions that the risk of harms from the applicant’s creditor is a private and localized one and that it is not unreasonable or unsafe for him to relocate to another part of India, there is simply no justification to afford the applicant non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

14.I should also note that although the court did pursuant to his request schedule an oral hearing for the applicant’s leave application, but as he failed to attend for which he subsequently explained in a letter to the court that as he had been fasting and praying in early morning everyday that he overslept on the day of the scheduled hearing and requested for another oral hearing.  I do not accept that it is a valid reason for his failure to attend the scheduled hearing, and given that he declined to add anything to his claim during his oral hearing before the Board, his failure to elaborate any of his proposed grounds for his intended application, I do not see any justification to delay the matter by scheduling another oral hearing in the circumstances, and proceeded to deal with the applicant’s leave application on papers.

15.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 10^th day of August 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