Ahmed Sajid v. Torture Claims Appeal Board Non-refoulement Claims Petition Office

HCAL 2500/2018

[2021] HKCFI 826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2500 of 2018

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 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 from Thailand on 1/6/2008 using a valid passport.[1]  He was arrested by the Customs at the airport for trafficking in a dangerous drug. He was sentenced to imprisonment for 15 years. He filed the non-refoulement claim on 18/7/2018. [2]

Background

2)The applicant was born on 2/12/1981 in Kolkata, West Bengal, India.  He was educated for 4 years.  He was single. His family was in India.  He did not know their whereabouts.  He was a salesman in cosmetics and garment. Around 1999, he set up a business in Kolkata.

3)Around 2006—2007, he borrowed 500,000 rupees from a loan shark (Tony) on a monthly interest of 5,000 rupees.  He used his house as a collateral. He had to repay within one year.  The loan was for expanding his business.  There was no loan agreement.

4)Tony was well known in Kolkata and a member of the TMC[3]. He had a large group of followers.

5)In early 2008, his goods were seized by the Customs.  He failed to repay the monthly interest. Tony sent some men to his house and demanded for payment. They threatened to kill him if he defaulted.  They came around six times.  However, his house was not forfeited. He was not assaulted.  He did not report to the police for fear of being killed. He thought the police would not take action against Tony.

6)In mid-2008, in order to repay the debt, he worked for Tony as a courier for various goods between India, China and Hong Kong.  On one occasion, he carried a bag of garments from Thailand to India via Hong Kong.  It turned out that the bag contained drugs.  He was convicted for drug trafficking subsequently. [4]

7)His mother informed him that Tony continued to look for him for repayment.   Tony threatened to kill him as the drug was confiscated.  Tony had suffered a great loss.   His family had moved to other places and he did not know their whereabouts.

8)He could not relocate to other places in India.  Tony would be able to locate him with the connections of the TMC.  He did not have a PAN card which was essential to find a job.  The police were corrupt.  They would not take action against Tony.[5]

The Decision of the Director

9)The Director considered his evidence and found that there was no real risk of harm. The reasons were:

(a)   Tony and his men had never assaulted him. They only threatened him verbally. Tony even proposed the applicant to work for him. They had never materialized the threat. There was no ill-treatment which amounted to “a minimum level of severity”.

(b)   There was no evidence that the TMC or any government official were involved. While Tony was a member of TMC, there was no evidence that the party would employed resources to assist Tony in such a private matter.

(c)   He assumed that the police would not assist.  He had not reported to the police.  It was not the case that the police refused to investigate.  In fact, he could depart India without any difficulties.  He was not targeted.

10)The Director had considered some relevant COI which confirmed that there were problems of corruption, human right violations and ineffective police action. The judiciary was overburdened.  The authorities tended to favour those in power and reluctant to hold public officials responsible for abuses.  Nevertheless, there were reforms to improve effectiveness of the police.  Various states had measures to improve effectiveness of the police.  There was legal aid for the low income citizen.  The National Human Right Commission (NHRC) was tasked to investigate violations.  A person might complain to the Superintendent or a Magistrate if a proper investigation was not conducted.  Special channels were established to tackle corruption through the pro-active role of the Central Vigilance Commission.  There was comprehensive law to tackle corruption.  There were news reports that the TMC members were arrested for investigations.  The Director was satisfied that there was reasonable State protection. There was no indication that the authorities failed to discharge their duties.

11)The law allowed internal relocation. India was about 3 million square km with a population of about 1300 million. The Director found that Bangalore and Mumbai were suitable alternative cities for relocation. It was not unduly harsh for the applicant to relocate.

12)The Director rejected his claims on all grounds on 18/9/2018.

The Decision of TCAB

13)The applicant confirmed in writing that he did not want any oral hearing. The adjudicator proceeded to consider his appeal on paper. The adjudicator rejected the appeal on 19/10/2018. The main reasons were as the following:

(a)   There was no evidence that any public official was involved. The loan dispute was a private matter. The subsequent threat and drug carrier incident could not be linked with any official or TMC. He could leave and return to India freely. He was not targeted. There was no evidence of physical or mental suffering reaching a minimum level of severity.

(b)   The adjudicator reviewed some COI. There was reasonable State protection with established criminal justice system. Complaint channels against the police were established. The CVC tackled corruption and abuse of power. He did not accept that Tony would employ huge resources to locate the applicant. It would be extremely difficult too. It was not unduly harsh to relocate to other cities given his age and experience. The claim on torture risk failed.

(c)   There was no severe injury sustained by the applicant. There was no substantial risk of CIDTP. There was reasonable State protection and relocation alternatives. The claim on BOR 3 failed.

(d)   Similarly, for the same reasons above, the claim on BOR 2 failed.

(e)   The adjudicator was not satisfied that there was real and personal risk of harm from the Tony and his men. The assault or threat by Tony was not within the categories under the Refugee Convention. Given that there were reasonable relocation alternatives, the claim on persecution risk failed.

14)The adjudicator dismissed the appeal on all grounds.[6]

Judicial Review

15)The applicant applied for leave to apply for judicial review on 7/11/2018. In his supporting affirmation, he disagreed with the decision of the adjudicator.

16)The applicant is detained in CIC. He filed a letter dated 1/3/2021[7]. He asked this court to order his release so that he could submit documents to support his claim.

17)The applicant had not specified what document he had in mind. In fact, in the NCF dated 22/8/2018, under Q/A 34, he confirmed that there was no document he wanted to submit in support of his claim. While I appreciate he was imprisoned for about 10 years, he had made no attempt to retrieve any document. Even after he filed his claim on 18/7/2018, he made no attempt to locate any document. In the circumstances, I do not think there is any substance in this request.

18)In any event, I agree with the adjudicator that the evidence of the applicant could not establish a case of non-refoulement protection.

19)In my judgment, there is no error of law or procedure.  The decision is reasonable.

Conclusion

20)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  

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