Ali Haydar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1948/2018

[2021] HKCFI 3603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1948 of 2018

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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 4/11/2015.  He was allowed to stay until 18/11/2015.  He surrendered to the Immigration Department on 20/11/2015 for overstaying.  He filed the non-refoulement claim in this case on 17/5/2016.[1]

Background [2]

2.The applicant was born on 9/10/1990, in Kolkata, West Bengal, India.  He was educated for 8 years.  He was single.  He operated a shoe business for about 10 years.  His father and sisters were in India.  His family had no political affiliation.  He had never been charged or imprisoned.

3.He borrowed INR 20 Lakhs[3] from a creditor in 2009 to set up his shoe business with a partner. He had to pay a monthly interest of 10% and to repay the principal in 3 years. He could not repay the monthly interest in 2010 onwards as business declined.

4.One day in February 2011, the creditor and a gang came to his shop demanding for repayment. He asked for an extension of time. The creditor told him to repay as soon as possible or else there would be serious consequences.

5.About 15 days later, the creditor and his gang came again. They were armed with hockey sticks. He was assaulted for failure to repay. He had back injuries. He was treated by a doctor in a clinic. He recovered in 15 days. He reported to the police. (1^st attack)

6.On the next day, the creditor and his gang came to his home. They assaulted him for making a report to the police. His mother struggled with them and had a heart attack. She was hospitalized for a month. (2^nd attack)

7.A few days after her mother was discharged from the hospital, the creditor and his gang came again. The creditor refused to extend time and threatened to kill him. With the help of his business partner, he was allowed an extension of 12 months. However, his business partner died in a car accident a month later. He became the sole owner of the business.

8.He went to Kunming, China, to source goods around January 2012. There was no threat from the creditor in the next 10 months.

9.In December 2012, the creditor and his gang came for repayment again. They assaulted him with hockey sticks. His left foot was injured. He was treated with painkillers. He recovered in 20 days. (3^rd attack)

10.He was in such fear that he fled to South Africa on 8/1/2013. During his stay there, his mother informed him that the creditor came asking about him. They harassed his mother who passed away on 26/1/2013 allegedly because of the pressure. He returned to India on 19/11/2013 as he thought that there was no more threat from the creditor.

11.A few days later, he was attacked by the creditor and his gang. They threatened to kill him if there was no repayment. He was treated in a clinic with ointment and painkillers. (4^th attack)

12.Meanwhile, he was in such fear that he stayed with his friend—Salman—in Bihala of Kolkata. On 14/1/2014, Salman asked an unknown person to accompany him to go to Hong Kong. He returned to Bihala on 22/1/2014.

13.One day in March 2014, the creditor and his gang came to Salman’s home. They assaulted him and threatened to kill him. He did not sustain any serious injury. It took him 7 days to recover. He did not report to the police. He thought they would not help. (5^th attack)

14.He departed for Hong Kong again on 15/4/2014 on Salman’s advice. He returned to Kolkata on 23/4/2014 as he ran out of cash.

15.After he returned to Kolkata, the creditor and his gang assaulted him again at Salman’s place. He was not injured. He then moved to the home of another friend—Raj—in Kolkata. The creditor however located him and assaulted him. He was not injured. They threatened to kill him. Raj asked him to leave. (6^th and 7^th attack)

16.He came to Hong Kong again on 4/6/2014. In Hong Kong, he discovered that some men followed him. He recognized them. They worked for the creditor. He did not report to the Hong Kong Police. He returned to Kolkata on 14/6/2014. He stayed in a guesthouse. In the guesthouse, he accepted a job from a person—Khan—to bring garment from Hong Kong. He came to Hong Kong and stayed from 19/6—23/6/2014.

17.He returned to Kolkata and stayed with another friend—Pawan. He was not troubled by the creditor until October 2015.

18.In early October 2015, he was assaulted by the creditor and several men with hockey sticks. The creditor indicated that he had strong network with the TMC[4]. They would be able to locate him. He was hospitalized for 15 days but with no open wound or fracture. (8^th attack)

19.He finally left India for Hong Kong on 4/11/2015. His friend Pawan paid for his ticket.

20.In November 2017, his neighbor told him on the phone that the creditor still looked for him.

21.He had left and returned to India with his passport without any problem. He asserted that the police refused to help. The creditor was associated with TMC and could locate him easily. If he returned to India, he would be harmed or killed by the creditor and his men.

The Decision of the Director

22.The Director found that the risk of harm was low. The reasons were as follows:[5]

(a)  There were several incidents in which the creditor assaulted him. However, the injuries were not serious. They mostly threatened him and eventually allowed him time to repay. The evidence indicated that they had no intention to harm or kill him. The obvious purpose was to put pressure on him for repayment.

(b)  This was a loan dispute of private nature. Although the creditor might have connection with the TMC, there was no evidence that the TMC was officially involved.

(c)  There was no evidence that the government or public official was involved. He was not targeted and could enter and leave India without any problem.

(d)  The Director had considered relevant COI.  There were serious problems of corruption, human rights violations and ineffective law enforcement.  Nevertheless, there were positive steps taken by the government in recent years. The CVC, CBI and ACB[6] were active in tackling corruption.  Various states in India had measures to improve the efficiency of the police.  NHRC [7] was tasked to investigate human rights violations and abuse of power.  There was a portal for lodging complaints. An aggrieved person could take the case to a superintendent or a magistrate if there was no investigation. There were news reports of punishment of politician and government officers. There was no evidence that the authorities were unable to discharge their duties.  The Director was satisfied that there was reasonable State protection.

(e)  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.

23.The Director rejected his claims on all grounds on 14/12/2017.

The Decision of TCAB

24.The applicant attended an oral hearing on 7/8/2018. The adjudicator found that there were fundamental inconsistencies. The applicant’s story was implausible. The adjudicator rejected the basis of his claim. The main reasons were as the following:

(a)  During the interview before the adjudicator, the applicant was not sure when he raised the loan. It could have been 2008, 2009 or 2010. He also asserted that the interest rate fluctuated from 10% to 22% depending on his business. The adjudicator doubted this evidence.

(b)  According to the applicant, he paid monthly interest of INR 10,000. The adjudicator pointed out that it was less than 10% as stated in the NCF. The applicant then explained that he just gave what he could. However, this explanation was inconsistent with his NCF that he could repay until 2010. The adjudicator had grave doubt whether there was a loan.

(c)  The applicant was uncertain about the time that he closed down his business. He asserted in the NCF that it was 2011 but he told the adjudicator that it was 2012. When asked to explain why he still went to Kunming to source goods in 2012, he asserted it was a courier trip for others. He finally said it was both a courier trip and sourcing stock for his business. The adjudicator doubted his credibility.

(d)  During the interview before the adjudicator, the applicant was unable to explain how his business failed. He gave various reasons which were vague and inconsistent with his NCF. He also alleged that he was illiterate and could not read the NCF. The adjudicator doubted his credibility.

(e)  During the interview before the adjudicator, the applicant could not explain satisfactorily the extensive travel history. He also failed to mention in his NCF that he lived in hiding. Had there been a genuine threat from the creditor, he would not have chosen to return to India.

(f)  After the incident of being stalked by some suspicious men connected to the creditor in Hong Kong, he returned to Hong Kong again. This was inconsistent with his fear. Further, the adjudicator found it strange that he did not report to the police. There was no need for any knowledge of Hong Kong law before he could do so.

25.The adjudicator concluded that the applicant was not credible.  There was no risk of harm from the creditor as the applicant asserted.

Judicial Review

26.The applicant applied for leave for judicial review on 14/9/2018.  He did not specify any error in the decision of the TCAB.

27.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.

28.There were serious inconsistencies in his evidence. The factual basis of his claim was implausible. The extensive travel history to Hong Kong and the repeated extension of time for repayment by the creditor cast grave doubt on his evidence. I agree with the adjudicator that the applicant was not credible.  In my judgment, there is no error of law or procedure.  The decision is reasonable.

Conclusion

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

Dated the 2^nd day of December 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