Khan Khurshid v. Torture Claims Appeal Board Non-refoulement Claims Petition Office

Case No.HCAL 2130/2018[2021] HKCFI 828

Court

High Court CFI

Date30 Mar 2021

Judge—

Case Document

100%Judiciary

HCAL 2130/2018

[2021] HKCFI 828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2130 of 2018

BETWEEN

	Khan Khurshid	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 came to Hong Kong on 16/9/2015 using a valid passport. He was allowed to stay until 30/9/2015. He overstayed and surrendered to the Immigration Department on 5/10/2015. While on bail, he was arrested by the police on 6/4/2016 for taking up employment. He was sentenced to imprisonment for 3 months. He filed the non-refoulement claim on 25/4/2016. [1]

Background

2.The applicant was born on 24/10/1970 in Hariharganj, Jharkhand State, India. He was educated up to class 10. He was married with one son. His family was in India. He owned a business in garments and electronics. Around 2000, he became a supporter of the Communist Party of India (CPI).

3.Around early 2014, he borrowed 2 million rupees [2] at a monthly interest rate of 8% from 3 moneylenders. The loan was for his garment and electronics business. There was a loan agreement signed.[3] The principal had to be repaid at the beginning of 2015 in a lump sum. He had to pay the monthly interest until June 2015. He failed to repay as the two persons who owed him a total of 2 million had defaulted.

4.The 3 money lenders were members of TMC.[4] He did not know the details of their background. Around March 2015, the moneylenders and their men came to his shop. They threatened to kill him if he failed to repay the loan by July 2015. They threatened to kill his family if he reported. He did not report to the police.

5.Since then, he received threats from them on the phone twice a week. He did not report as he thought it was his responsibility to repay. He was too scared. In any event, he thought the police would not assist as he did borrow money.

6.During the interim from May to August 2015, he went on business trips to Hong Kong and China. He was trying to earn money to repay the loan.[5]

7.Around late August, about 10 men came to his shop demanding repayment of the loan. One of them (BB) assaulted him for about 40 minutes. He was given painkiller and recovered in 15 days. He reported to the police but they did not take any action. He did not tell the police about the loan.

8.From September onwards, there were more frequent threats from the moneylenders. He was told to repay by the end of September. They came to his shop making threats. He was in fear. He settled his family with his in-laws in Park Circus, Kolkata. He was safe there.He did not report to the Indian police as BB was a powerful politician.He finally left India for Hong Kong smoothly on 16/9/2015 by air.

9.His wife informed him that the moneylenders went to his home asking for his whereabouts [6]. He did not think the Indian authorities could assist as it was his responsibility to repay. He did not think the police would do anything. The police would not take action against powerful politicians. He would not be safe anywhere in India.

10.He was in fear that the moneylenders would harm or kill him if he returned to India. He could not repay the loan.

The Decision of the Director

11.The Director considered his evidence and found that the risk of harm was low:[7]

(a)   The 3 moneylenders and their men mainly threatened him verbally. The assault in his shop around late August 2015 was not serious albeit that he needed 15 days to recover. The ill-treatment in the whole period did not amount to “a minimum level of severity”.

(b)   The moneylender did not hurt him or his family seriously. It was obvious that they wanted him to repay the loan. There was no intention to kill or seriously harm the applicant or his family.

(c)   There was no evidence that any government official was involved. While the moneylenders supported TMC, there was no evidence that the party was involved in such a private matter.

(d)   He assumed that the police would not assist. He had not followed up the action with the police. Even accepting misconduct of the local police officer about the report of the assault, it should not be taken that the Indian authorities would not take action or tolerate this kind of conduct. In fact, he had not mentioned the loan to the police. It was unreasonable to say that the Indian police was indifferent to this situation. There was no evidence that any government official was involved. Nor was there any consent, instigation or acquiescence by any public official.

(e)   In fact, he could depart India without any difficulties. He was not targeted.

12.The Director had considered some relevant COI. There were serious problems of corruption, human right violations and ineffective police action. The police were influenced by politicians. They tended to favour those in power. Nevertheless, there were continuous reforms with positive results in recent years. Various states had measures to improve effectiveness of the police. NGO might assist the public to file petition against officials for breach of public duty. There were complaint channels to address public grievances. The National Human Right Commission (NHRC) was tasked to investigate violations. There was an online system (portal) for lodging complaints. Special channels were established to tackle corruption (Central Vigilance Commission). There was comprehensive law to tackle corruption. There was no evidence of breakdown of law and order. The Director was satisfied that there was reasonable State protection.

13.The law in India allowed internal relocation. India was a large country with a population of about 1300 million. The Director found that New Delhi and Mumbai were suitable alternative cities for relocation. It was not unduly harsh for the applicant to relocate given his experience in business.

14.The Director rejected his claims on all grounds on 28/4/2017.

The Decision of TCAB

15.The adjudicator held an oral hearing on 26/7/2017. There was an interpreter. The applicant sought an adjournment to obtain the loan documents. After considering the reasons, the adjudicator refused to adjourn holding that the applicant had ample time already.[8] The applicant elected not to give evidence. The adjudicator rejected the appeal on 7/8/2018. The main reasons were as the following:

(a)   In his NCF, he mentioned that his former home was rented out before settling his family with his in-laws. While applying for adjournment, he said his former home was left vacant. All his belongings were there. The landlord deducted the rent from the deposit. Over 90,000 Rupees were deducted for that purpose. The adjudicator found this background not credible.[9]

(b)   The applicant made a report to the police about the assault by BB and the group. However, he did not tell the police about the identity of BB nor the loan. The adjudicator found this not credible as the purpose of making a report was to stop the threats.[10]

(c)   Even when there were more threats on the phone, the applicant did not report to the police but chose to settle his family and leave India. Given that it was not that the police had refused to assist, the adjudicator found the conduct of the applicant not credible.[11]

(d)   During the application for an adjournment, the applicant stressed that the moneylenders resided at the same building as he did. This was never mentioned in the NCF or the record of interview before the Director. In fact, there was no assertion that the moneylenders had harassed the applicant at his home which was so close by. The adjudicator found this not credible.[12]

(e)   The adjudicator was not satisfied that there was in fact any loan. There was no real and personal risk of harm from the moneylenders if he returned to India.[13]

(f)   Even accepting that there might be a loan, in the midst of all the threats, the applicant made business trips to China and Hong Kong from March to August 2015. This would leave his family without his protection as the moneylenders were residing at the same building.[14]

(g)   The applicant said he was assaulted for 40 minutes. He only suffered some minor injuries. He did not need immediate treatment. He was eventually given painkillers. The adjudicator found the assault an exaggeration.

(h)   Despite he had reported to the police about the assault, he had not mentioned the assailant. He had not mentioned the motive of the assault. [15]

(i)   Given the low level of intimidation and the repeated extension of deadline for repayment, it was obvious that the moneylenders had no intention to kill or harm the applicant. There was no involvement of public official nor State acquiescence. There was no evidence that the police had not dealt with his complaint improperly despite he had not been frank about the background.

16.The adjudicator concluded that the applicant was not credible. There was no need to consider State protection or relocation. However, the adjudicator did consider the COI listed out in the decision of the Director, the adjudicator was satisfied that there was reasonable State protection. There was no evidence that the moneylenders would locate the applicant anywhere in India. His family was safe in Kolkatta. [16]

17.The adjudicator dismissed the appeal on all grounds.[17]

Judicial Review

18.The applicant applied for leave to apply for judicial review on 5/10/2018. In his supporting affirmation, he pointed out that the adjudicator failed to consider the realities in his home country.

19.The applicant filed a letter dated 21/10/2020. He stressed that the adjudicator had not considered his case afresh. He relied on unofficial sources of news which was simply hearsay. The adjudicator had not analysed the supporting documents.

20.During the hearing on 19/1/2021, the applicant indicated that he had no complaint against the TCAB. He needed more time to submit supporting documents.

21.The applicant came to Hong Kong in 2015. He was fully aware of the importance of supporting documents. He made little effort to do so. I agree with the adjudicator that the applicant already has ample time. The decision to refuse adjournment was correct. I do not find the applicant’s reason for adjournment genuine. I refuse him time for that purpose too.

22.In any event, I agree with the adjudicator that the evidence of the applicant in support of his claim is not credible. His conduct of travelling for business to China and Hong Kong in March to August 2015, his return to India and his final arrival at Hong Kong in September 2015 was inconsistent with his claim of fear. Given that the adjudicator rejected completely the factual basis of his claim, there was no need to consider State protection and relocation.

23.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. In general, this court would not interfere.

24.In my judgment, there is no error of law or procedure. The decisions are reasonable.

CONCLUSION

25.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 Khan Khurshid 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 7082/17/5/88/IN1366 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1311/16 (formerly RBCZ/11553/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Decision of the Director dated 28/4/2017, §§9—11.

[2] About HK$ 220,000.

[3] According to his NCF, he had left this loan agreement in his house. No one helped him to retrieve it. Decision of the TCAB dated 7/8/2018, §34(l).

[4] All India Trinamool Congress.

[5] Decision of the TCAB dated 7/8/2018, §34(c).

[6] The tenant of his home told his wife about this.

[7] Decision of the Director dated28/4/2017, §§16—26.

[8] For the detailed discussion on adjournment, see the Decision of the TCAB dated 7/8/2018, §§38—41.

[9] Decision of the TCAB dated 7/8/2018, §42.

[10] Decision of the TCAB dated 7/8/2018, §45.

[11] Decision of the TCAB dated 7/8/2018, §46.

[12] Decision of the TCAB dated 7/8/2018, §47.

[13] Decision of the TCAB dated 7/8/2018, §48.

[14] Decision of the TCAB dated 7/8/2018, §49.

[15] Decision of the TCAB dated 7/8/2018, §50.