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HCAL 2454/2018
[2020] HKCFI 2909
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2454 of 2018
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Shaikh Sabir |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
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consideration of the documents only; or |
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consideration of the documents and oral submissions by the Applicant in open court; |
Order by Deputy High Court Judge P. Li:
The application for leave to apply for Judicial Review be withdrawn.
Observations for the Applicant:
1.The non-refoulement claim[1] of the applicant was rejected by the Director of Immigration on 30 January 2018[2]. His appeal to TCAB was dismissed on 21 September 2018. He filed an application for leave for judicial review on 5 November 2018.
2.On 14 October 2020, he filed an affirmation to withdraw the leave application. He indicated that his problem in India was resolved. He wanted to return home.
3.Given the above, I grant leave for him to withdraw the leave application.
4.I have however considered the decision of the TCAB. I would have refused leave for judicial review in any event. The following is the relevant considerations:
(a) The applicant was born on 26 April 1986 at Kolkata, India. He was single. He received education up to class 12. He was a Sunni Muslim. He supported the All India Trinamool Congress Party (‘TMC’).
(b) He had about 8 years’ working experience in repairing and selling mobile phones in a company called Ashra Telecom (2005-2012) in Khiderpur.
(c) He came to Hong Kong by air on 28 September 2012. He was allowed to stay until 12 October 2012. He was arrested for overstaying on 3 November 2012. He was granted bail on 19 December 2012. He defaulted in two screening interviews scheduled in February 2013.[3] He was re-arrested on 4 October 2013. He filed his non-refoulement claim on 7 October 2013. He was released on recognizance on 9 November 2013.
(d) In June 2013, the applicant was convicted of possession of a dangerous drug and was fined. He was again convicted of trafficking in a dangerous drug in March 2015 and was sentenced to 6 years and 4 months’ imprisonment.
(e) The basis of his claim was that he would be harmed or killed by the creditor (‘Sanjay’) and his gang if returned to India. He was unable to repay the loan which was about 2.2 million rupees.
(f) Since 2005, he operated a retail shop selling mobile phones in Khiderpur. He borrowed from Sanjay to finance the business. The loan went up to about 2.2 million rupees by 2011. He could only manage to pay the monthly interest of up to 10% per month.
(g) Sanjay was an influential businessman in Khiderpur. He had connections with the Indian National Congress Party (‘INC’). His friend Ram was a member of the INC and also a member of the West Bengal Legislative Assembly.
(h) In 2011, the business went into difficulties as two customers could not pay the goods which were sold on credit. The amount was about 2 million rupees. The police did not take any action as they were controlled by the INC.
(i) In January 2012, Sanjay started to press the applicant for repayment and threatened to kill him. He was even assaulted although no treatment was necessary. In March 2012, he heard that his neighbour Mr Lal, who could not repay a debt, was killed by Sanjay.
(j) He hid himself at his friend’s place in New Delhi until 28 September 2012. He fled to Hong Kong as he was afraid that Sanjay and Ram could locate him. Ram had influence all over India.
(k) In 2017, the applicant maintained that he was still in danger as Sanjay kept on demanding repayment from his parents. While he accepted that Ram had joined TMC which was currently in power, Sanjay was still influential. He had no faith in the police.
(l) The applicant had frequent trips to Hong Kong between 2005-2012 for buying spare parts for his mobile phone business.
(m) The adjudicator found the applicant not credible. He did not accept there was such a huge debt. He did not accept the murder of Mr Lal and the influence from Ram predisposed to the applicant’s leaving India. The main reasons were:
i. The basis of the applicant’s fear was that Sanjay could locate him anywhere in India relying on the political influence from Ram. However, Ram had changed allegiance from INC to TMC in 2012. This fear on political influence was no longer valid.
ii. INC lost the election in 2014. TMC was in power since 2015. Kolkata was not a stronghold for INC. [4]
iii. The police were not controlled by the INC. The reason for their inaction was no longer valid.
iv. Sanjay suddenly pressed for repayment in 2012, in fact, the debt had been accumulating in the past few years. It was not in Sanjay’s interest to threaten to kill the applicant and ruin his business.
v. Given the turnover of the business and the heavy debt owed to Sanjay, it was not going well and not viable.[5]
vi. There was nothing to corroborate the existence of a debt. Nor was there any newspaper report on the murder of Mr Lal.
vii. The applicant defaulted in two screening interviews. He only filed his present claim 7 months after his torture claim was rejected on 1 March 2013. He had committed serious crimes in Hong Kong. This kind of conduct was not consistent with a person seeking non-refoulement protection.
(n) The adjudicator rejected the suggestion that Sanjay and Ram would be able to locate the applicant all over India. It was not unreasonably harsh for the applicant to relocate.
5.The adjudicator concluded that there was insufficient evidence to support the claims under BOR 2, BOR 3 and persecution risk. There was reasonable State protection. There were reasonable options for internal relocation.[6]
6.In my view, apart from the credibility of the applicant, this case boils down to a private loan dispute with very little evidence to support any non-refoulement claim. The decision of the TCAB was reasonable given the evidence. There was no error of law or procedures.
Dated the 18th day of November 2020.
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(Mike Mak) |
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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:
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a) 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);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) 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)).
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Sent to the Applicant
on 18 November 2020
Shaikh Sabir
Applicant’s ref. no:
Nil.
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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 18 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10269/18/2/153/IN1949
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3007/17 (formerly RBCZ/1065/12 & RBCZ/2001310/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] On BOR 2, BOR 3 and persecution risk grounds.
[2] The torture claim had already been rejected by the Director on 1/3/2013.
[3] His torture claim was rejected without a screening interview.
[4] Paragraphs 55-58, decision of the TCAB.
[5] Paragraphs 59-62, decision of the TCAB.
[6] Paragraphs 67-70, decision of the TCAB.
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