Case Document

100%Judiciary

HCAL 506/2019

[2021] HKCFI 827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 506 of 2019

BETWEEN

	Abdul Rahaman	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 P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant entered Hong Kong on 12/8/2011. He was allowed to stay for 2 weeks. He overstayed until he was arrested on 30/10/2011. He filed his torture claim on 1/11/2011. It was rejected by the Director on 13/2/2012. The TCAB refused his appeal on 22/6/2012. He filed a non-refoulement claim on 17/7/2013 which was assessed under the USM on the following grounds: BOR 2, BOR 3 and persecution risk.[1]

BACKGROUND [2]

2.The applicant was born on 20/11/1987 in Khidderpore, Kolkata, West Bengal, India. He was a Muslim. He was single. His family lived in India. He received education for 2 years. He was a self-employed wholesaler in a market. He had come to Hong Kong to buy garments and electronic goods for his business before.

3.Around 2003, he fell in love with a rich Hindu girl (M) who lived opposite to his house. He was aware of the difference in religion. He thought everything would be fine after marriage. They therefore kept the relationship unknown to both families.

4.In 2008, his family moved to a house about 1-hour-walk away. He thought his father had discovered the relationship. However, the relationship continued and they saw each other once a month. After he started his business in 2009, he had to travel to Hong Kong on business frequently. They met less.

5.A few months later, he met M in a park at Fun City. Some friends of M’s brother saw them. The applicant and M left immediately. A few days later, M told him on the phone that the 2^nd elder brother (M’s brother) was furious and beat her. The next day, a group of men including M’s brother came to his house. The applicant was not there. M’s brother told the applicant’s aunt that he must stop seeing M. His aunt agreed to clarify with the applicant. The group left. The applicant denied the relationship before his aunt. He decided to stop the dating in order not to cause harm to M.

6.Sometime afterwards, when he returned to Kolkata from Hong Kong, his luggage was confiscated despite he had paid duty at the airport. This never happened before. He thought M’s brother was behind it. He thought M’s brother was affiliated with TMC[3].

7.In August 2011, M lied to her family in order to meet him at Nikko Park. It was debunked. They decided to stop seeing each other for the time being.

8.Whenever he met M’s brother anywhere, M’s brother threatened to kill him if he continued the relationship with M. There were several occasions of assault in 2009 by M’s brother and his group. On two occasions, he was injured at his head and needed suturing. He recovered in 15-20 days. He reported to the police but did not know the result. His family advised him not to follow up to avoid further trouble. He could not explain why these incidents were not mentioned in the SCF during the interview before the Director.

9.He feared for his safety and finally left India around 12/8/2011. He could not relocate as M’s brother was influential. The police were biased in favour of the rich. His father told him the M’s brother still looked for him.

The Decision of the Director

10.The Director found that the risk of harm was low for the following main reasons:[4]

(a)   There were several occasions of assault. M’s brother and his group used sticks and glass bottles. He needed suturing and recovered in 15-20 days. Those injuries did not amount to “a minimum level of severity”.

(b)   As to the confiscation of his luggage in 2009, there was no evidence to substantiate the malpractice by the customs officers. It was his bare assertion that this was connected with M’s brother. There was no evidence that M’s brother was influential country wide.

(c)   Despite the threat from M’s brother and his group, they had not harmed or killed him. They had not come to his house to attack him. In fact, he was safe in his home before leaving India.

(d)   There was no evidence that M’s brother objected to the relationship because of religious differences. In fact, he himself thought that the religious difference would not be a serious problem after he married M.

(e)   The applicant had left India for 6 years. The hostility from M’s brother should have been dissipated. It was unlikely that her family would continue to pursue him.

(f)    He only raised his claim when arrested for overstaying. It was 3 months after he arrived at Hong Kong. This was inconsistent with his fear for his safety.

11.The Director accepted that there were problems of corruption, human right violations, abuse of power and inefficient police, however, there were on-going reforms in India. There was effort to bring police officers to justice and enhance accountability. Special channels were established to tackle corruption (Central Vigilance Commission). One could complain to the Superintendent if a proper investigation was not carried out. Chief vigilance officers were designated to address public complaints. The Director was satisfied that there was reasonable State protection.[5]

12.The Director pointed out that the Indian law allowed internal relocation. India was a large country and the population was huge. There were reasonable options for relocation, e.g., Delhi and Mumbai each with a population over 18 million. These cities could provide plenty of job opportunities. It was not unduly harsh for the applicant to relocate given his background.[6]

13.The Director dismissed his non-refoulement claim on all grounds on 30/11/2017.

The Decision of TCAB

14.The adjudicator held an oral hearing on 15/10/2018. The applicant was assisted by an interpreter. The applicant confirmed that the SCF and the record of interview was true. The content had been translated to him at the time when they were compiled. The applicant gave evidence and answered questions.

15.The adjudicator concluded that the relationship with M was a complete invention. The assault by M’s brother was not credible. It was a complete fabrication. The adjudicator rejected the allegation that M’s brother or M’s family would kill or harm the applicant if he returned to India. The main reasons were as the following:[7]

(a)   The relationship started in 2003, the applicant and M had called each other twice a week and dated once a month. They lived opposite to each other until 2008. It was surprising that the applicant knew very little about M—her age, her family name, her brothers’ names and what school she attended.

(b)   The applicant spoke to M shortly before leaving India in August 2011. He did not tell M his plan. After he arrived at Hong Kong, he had not contacted M for fear of harm to his family. The adjudicator doubted this. It was not convincing that he chose not to do so in Hong Kong but kept on contacting M while in India. It mattered not whether he was in Hong Kong or in India, there were always chances that his family might be harmed.

(c)   The threat always came from M’s brother. He had never asked M for her brother’s name. The applicant even said the name was not necessary when making a report to the police.

(d)   The applicant thought M’s brother was behind the confiscation of his luggage in the airport. He thought so because M’s brother used to travel on the same plane with him to Hong Kong. The adjudicator wondered why the applicant did not talk to M’s brother to find out his name.

(e)   The applicant was inconsistent as to when he moved to the new house, in 2008 as recorded in his SCF or in August 2011 after he left India according to his evidence in the hearing before the TCAB. These dates were relevant as the applicant alleged that a series of assault occurred after he returned to the previous neighourhood to visit friends. It was also after the move to the new house that they started the monthly dating. It was also in the new house that M’s brother came and threatened him.

(f)    The applicant did not mention Nikko Park in his SCF. In fact, Nikko Park was not closed to home as he claimed. He was not certain if the assaults were before or after the Nikko Park meeting. His explanation was unconvincing.

16.The adjudicator opined that the issue of relocation did not arise given the rejection of his evidence. Nevertheless, the law allowed relocation. There was reasonable relocation option outside Kolkata or some other cities. The influence of M’s brother would not extend outside West Bengal. The applicant could relocate without undue hardship given his work experience.[8]

17.The adjudicator dismissed his appeal on 15/2/2019. The applicant failed on all applicable grounds.[9]

Judicial Review

18.The applicant applied for leave to apply for judicial review on 21/2/2019. In his supporting affirmation, he pointed out several points which is dealt with below:

a. The applicant complained that he was not represented during the appeal. He had no legal assistance in processing the appeal and the leave application.

i. It is well settled that a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[10]

ii. The applicant had legal assistance from DLS in preparing his case to the Director. There was no substantial change of his case before the TCAB. Given the circumstances, I do not find any irregularity even though he was not represented before the TCAB.

b. The applicant pointed out that there was no language assistance provided. He had difficulty understanding the correspondences. The hearing bundle was in English. He did not have sufficient time to prepare.

i. The most important document in the hearing bundle should be the decision of the Director. It was, as a matter of practice, sent to the Duty Lawyer Scheme. I am sure the DLS had translated the decision to the applicant.

ii. As to the SCF and the screening interview record before the Director, the applicant was assisted by the DLS. All these documents were translated to him at the time when compiled. He should have fully understood the content. [11]

iii. In my view, the applicant should seek assistance from others according to his resources. There is no duty on the part of the Director to supply translated documents. In fact, there was a Hindi/English interpreter in the TCAB hearing. Had there been any difficulties, he should have sought assistance from the adjudicator during the hearing.

iv. I notice that both the Form 86 and the affirmation for the leave application were typewritten in English. They are very comprehensive. This indicate that the applicant was able to find language assistance.

v. The applicant was able to answer the questions put by the adjudicator. There was no record of any complaint. This showed that he understood the proceedings.

vi. The applicant submitted a written letter dated 18/5/2020 in English with the assistance of a Hindi interpreter arranged by himself. I would discuss the issues raised in this letter below. Suffice it to say at this stage that the applicant was able to find assistance in language.

c. He complained that the decision of the TCAB was never translated to him. He could not understand fully the reasoning of the adjudicator. This hampered the formulation of his leave application. As stated above, the applicant should seek language assistance according to his resources. The comprehensive affirmation in English in support of the leave application and a further letter to this court dated 18/5/2020 in English indicate that he was able to find help.

d. The applicant complained that the Director and the adjudicator use the same list of COI in assessing the situation in India. He also pointed out that reforms might take years and doubted the effectiveness at present. They were diplomatic show pieces instead of actual improvement.

i. The adjudicator found the applicant not credible and rejected his evidence. There was no need to consider the situation in India. The complaint against the adjudicator about the COI is not relevant.

ii. As for the Director, he had considered various COI from the United States Department of State, the Central Intelligence Agency US and the UK Home office. They are State agencies collecting information through diplomatic channels. The information provided should be highly relevant and accurate for assessing the situation in India. The news reports were from reliable news agencies. They should be reliable.

iii. The applicant was well aware of the material relied on by the Director who listed out all the relevant websites in the decision of 30/11/2017. Had there been any relevant information supporting his criticism, the applicant should have sufficient time to raise it during the hearing with the TCAB in October 2018.

iv. I disagree that the Director had not considered the COI thoroughly. In fact, the Director had cited specific paragraphs of the relevant COI in his decision.

19.In the hearing held on 19/1/2021 before this court, the applicant said he had nothing to update. He had no complaint against the proceedings in the TCAB. He made no complaint that he could not understand the appeal bundle nor that he had language problems as claimed above.

20.The applicant filed a letter dated 18/5/2020, he mentioned that the ruling party (BJP) had committed crimes against Muslims and minority religious groups. There was no police action taken. He also asked for more time to retrieve the discharge certificate from the hospital.

a. The basis of the applicant’s claim was that M’s brother disapproved the relationship between the applicant and M. There was no mention of religious persecution by the BJP. It is inappropriate for the applicant to raise a complete new issue at this stage. This court would not consider this new issue.

b. The applicant arrived at Hong Kong in 2011. There is ample time for him to retrieve whatever document to support his claim. I do not think it is reasonable that he asks for time at this stage.

21.In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB and the Director.

22.In my judgment, there is no error of law or procedure. The decisions are reasonable. The evidence of the applicant is full of contradictions. The adjudicator was right to reject his story.

CONCLUSION

23.The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.

Dated the 30^th day of March 2021

	(Mike Mak)
	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:
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)).		Sent to the Applicant on 30 March 2021 Abdul Rahaman 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 30 March 2021 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9481/17/12/148/IN1788 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2536/17 (formerly RBCZ 2000763/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)