Sk Wasim v. Torture Claims Appeal Board

Case No.HCAL 1973/2020[2021] HKCFI 3770

Court

High Court CFI

Date14 Dec 2021

Judge—

Case Document

100%Judiciary

HCAL 1973/2020

[2021] HKCFI 3770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1973 of 2020

BETWEEN
	Sk Wasim	Applicant
	and
	Torture Claims Appeal Board	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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1. the application for leave to apply for Judicial Review be withdrawn; and

2. the scheduled hearing on 16 December 2021 at 10am be vacated.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of India who arrived in Hong Kong on 13 March 2015 as a visitor with permission to remain up to 27 March 2015 when he did not depart and instead overstayed, and on 9 April 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Khidderpore, Kolkata, India. After leaving school he worked as a salesman in Kolkata, and subsequently ran his own garment business in his home district.

3.In 2011 in order to expend his business the Applicant borrowed a loan from a local money lender with interests charged on the loan payable every month, but after his business failed and his shop was closed down in late 2014, and when he was unable to make any interests payments of his loan, his creditor sent his men to threaten him, and after being beaten up by those men on several occasions, the Applicant fled to another town to take shelter in his aunt’s place, and on 13 March 2015 he departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 3 May 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of his creditor to seriously harm or kill him other than to put pressure on him to repay his debts, that in any event it was a private monetary dispute without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

6.On 21 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was found to have been filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT(2) proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a written notice dated 29 August 2019 the Board refused to allow the late filing of the Notice of Appeal upon finding that it had been late by 2 days, and that the Applicant had failed to produce any documentary evidence in support of his stated reason for the delay.

7.On 30 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for his intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2) that their decisions were not reasonable or fair as required by the Wednesbury test; and

(3) that the right to life is protected under Article 28 of the Basic law and Article 2 of the Bill of Rights and in practice is mainly protected by the criminal law and from extra-judicial killings that the Applicant may face if deported back to his home country.

8.However, on 3 December 2021 the Applicant wrote to the Court to request to “close” his judicial review application as his problem in his home country has been resolved and that he want to return to India.

9.In the premises, and in view of the Applicant’s confirmation that his problem in his home country has been resolved and that he wants to go home, I accede to his request by allowing him to withdraw his application, and direct that the scheduled hearing on 16 December 2021 at 10am be vacated.

Dated the 14^th day of December 2021.

(TAM Kam-man)
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 his 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 14^th December 2021 Sk Wasim 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 14^th December 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 11693/18/5/278/IN2327 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1260/18 (formerly as RBCZ 12914/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

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