Md Hasnain v. Toture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2988/2018

[2021] HKCFI 2141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2988 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 on 7/12/2014.  He was allowed to stay until 21/12/2014.  He was arrested by the police on 30/11/2016 for overstaying [1]. He filed the non-refoulement claim in this case on 25/2/2017 and 20/3/2017.

Background

2.The applicant was born on 4/2/1993, in Kolkata, West Bengal, India [2]. He was educated for 9 years.  He was a Muslim.  He was a construction worker.  He was single with mother and brothers in India.  His family had no political affiliation.  They were not supporters of the Indian National Congress (“INC”) [3].

3.He was the coordinator of INC in his home area.  He was responsible for organizing functions and sorting out problems.  He was a volunteer but sometimes he was paid on project basis.  He was the secretary of a club affiliated to the home police station.

4.Around February 2014, Sarfu asked him to join the Bharatiya Janata Party (“BJP”).  Sarfu wanted him to bring 100 supporters of INC to join BJP.  He refused.

5.He refused Sarfu again in March.  Sarfu threatened that he and his family would be in big trouble.  He reported this incident to the police. (1^st report)

6.Later in April, Sarfu came to his home with a group of men.  They threatened him to withdraw the report.  He reported this incident again to the police. (2^nd report)

7.Sarfu was the leader of the “BJP” in the applicant’s home area.  He put pressure on others to vote for the “BJP”.  Sarfu was an influential gangster and extorted money from builders.

8.About May 2014, Sarfu broke into his home with a group of men.  They assaulted him and his parents for more than an hour.  Sarfu even pointed a pistol at him threatening to kill if he reported to the police again.  They damaged the properties in his home and left.  He and his parents were sent to the Kolkata Hospital afterwards.  His father had a fractured right foot.  His mother had a broken arm and fractured skull.  She was in ICU for 6-7 weeks.  She lost her eyesight.  He had bruises and redness over his arms and thighs.  He was hospitalised for 2 months and took 5 months to recover.

9.Since then, he and his parents moved to Bihar Jharkhand.  He reported to the police for the 3^rd time before moving.  Sarfu confronted him outside the police station.  Sarfu threatened him again.  They fought each other. (3^rd report)

10.About August 2014, Sarfu located him at Bihar Jharkhand and led a group of men to his home.  He was not at home.  Subsequently, his mother and some villagers told him that Sarfu shot his father 4-5 times at his head.  His father died.[4]

11.He was very scared.  He did not report to INC or the police.  With the help from a friend, he took a flight via Thailand to Hong Kong.  He used his passport and left India through proper channels without any problem.  He filed his claim more than 2 years later.  He did not seek protection immediately as he was scared that he would be sent back to India.

12.He had lost contact with his family.  He heard from other claimants in Hong Kong that Sarfu and his gang posed threat to the poor in India.  Sarfu killed a torture claimant who was sent back to India by the Hong Kong Government.[5]

13.He did not think the police would help him.  He did not complain through other channels.  The officer who accepted his reports was connected with Sarfu. There was actually no investigation.  Sarfu had a wide network and could locate him anywhere in India.

The Decision of the Director

14.The Director considered all relevant circumstances and found that the risk of harm was low: [6]

(a)  There were several incidents in which Sarfu threatened the applicant.  They were limited to verbal threats.  The most serious attack by Sarfu and his gang was around May 2014.  They injured him and his parents.  Had Sarfu wanted to kill him, they could have done so on that occasion.  This indicated that they did not intend to kill.

(b)  Even during the encounter outside the police station after the the 3^rd report, Sarfu used verbal threats only.  They fought each other.  There was no intention to kill.

(c)  He claimed that his father was shot at the head by Sarfu during the attack in August 2014 at Bihar Jharkhand.  It was pure hearsay as he was not at home.  He learned from other villagers later.

(d)  With regard to the cause of death of his father, the applicant’s evidence in NCF was in serious conflict with what he said during the interview before the Director.[7]

(e)  He had delayed for more than 2 years before filing a non-refoulement claim.  This was indicative that he perceived no imminent fear.

(f)  There was no evidence that Sarfu had the ability to track him down all over India.  In fact, he was able to leave India through official channels.  He was not targeted by any authorities.

(g)  He knew very little about Sarfu and his background.  He did not even know the full name of Sarfu.  There was no evidence that Sarfu was acting in any official capacity nor did the BJP supported his conduct.

(h)  He had not followed up and complained to other police station or authorities.  Even accepting the misconduct of the police officer, it should not be taken that the Indian authorities would not take action or tolerate Sarfu’s conduct.  It was unreasonable to suggest that the Indian government was indifferent to his situation.

(i)  The Director had considered relevant COI.  There were serious problems of corruption, human rights violations and ineffective law enforcement.  Nevertheless, there were continuous reforms with positive steps taken in recent years.  Various states in India had measures to improve the efficiency of the police.  NGO might file public interest petition against officials for breach of public duties. NHRC [8] was tasked to investigate human rights violations.  There was an online system for lodging complaints.  Special channels were established to tackle corruption [9].  An aggrieved person could take the case to a superintendent or a magistrate if there was no investigation.  There was no evidence of breakdown of law and order.  The Director was satisfied that there was reasonable State protection.

(j)  The law in India allowed internal relocation.  India was a large country with a population of about 1.2 billion.  The Director found that New Delhi and Mumbai were suitable alternatives for relocation.  It was not unduly harsh for the applicant to relocate given his experience.

15.The Director rejected his claims on all grounds on 27/2/2018.

The Decision of TCAB

16.The adjudicator held an oral hearing on 26/10/2018.  The adjudicator rejected the appeal on 20/12/2018.  The main reasons were as the following:[10]

(a)  During the interview before the adjudicator, the applicant asserted that there was an election in 2014 for the West Bengal Legislative Assembly.  Sarfu wanted him to bring votes to the BJP.  However, according to the Election Commission of India, there was no election for the West Bengal Legislative Assembly in 2014. 

(b)  According to the Election Commission of India, during the elections in 2011 and 2016, the BJP was not a political force in West Bengal.  The All India Trinamool Congress won the elections.

(c)  The applicant asserted that the INC candidate was Rakesh Singh.  There was no such candidate according to the records of the Election Commission.

(d)  During the interview before the adjudicator, the applicant said that in March 2014, his parents and brother were attacked at his Kolkata home.  He was not at home.  His father had head injuries.  His mother was not seriously injured and was released after a check-up.  This was inconsistent with what he told the Director [11]. He explained that what he told the Director occurred after he moved to Ramgarh (same as Bihar Jharkhand).  He insisted that he told the Director he was not at home during the attack at Kolkata.

(e)  During the interview before the adjudicator, the applicant said that after the BJP lost the election, Sarfu met him on the street.  Sarfu put a pistol in his mouth and threatened to kill him.  He had not mentioned this to the Director as no one asked about it.

17.The adjudicator concluded that the available information did not support the applicant’s assertion—Sarfu attacked him as he refused to bring supporters to the BJP during the election in 2014—in fact there was no such election.

18.The adjudicator had grave doubt upon the veracity of the applicant’s claim.  Given other discrepancies summarised above, the adjudicator concluded that the applicant was not credible.  There was no risk of harm from Sarfu as the applicant asserted.

19.The adjudicator dismissed the appeal on all grounds on 20/12/2018.

Judicial Review

20.The applicant applied for leave for judicial review on 27/12/2018.  In his supporting affirmation, he did not specify any error in the decisions of the TCAB and the Director.

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.  In general, this court would not interfere.

22.I agree with the adjudicator that the evidence of the applicant in support of his claim is not credible.  In my judgment, there is no error of law or procedure.  The decisions are reasonable.

CONCLUSION

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

Dated the 22^nd day of July 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