Seikh Ezazuddin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 564/2020

[2021] HKCFI 3797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 564 OF 2020

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 the Applicant being absent in open court;

Order by Deputy High Court Judge P. Li:

1.      Application for leave to apply for Judicial Review be reinstated; and

2.      Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant was from India. On 30/1/2019, he was allowed to stay in Hong Kong for 2 weeks as a visitor. During Customs clearance at the airport, he was arrested for trafficking in a dangerous drug. Eventually, he was convicted and sentenced to imprisonment for 15 months on 18/7/2019[1]. He was detained in CIC after completion of his sentence. He filed the present non-refoulement claim on 3/9/2019 & 19/9/2019.

Background

2.The applicant was born on 8/11/1992 in Kolkata, West Bengal, India.  He had education for 12 years.  He was a Muslim.  He was single.  From 2014 to 2018, he ran a business of importing goods [2] to Kolkata from Hong Kong. He had no political affiliation. He was never arrested or detained by the authorities in India.

3.He sometimes bribed the Customs in India as some of his goods were counterfeits. He had been to Hong Kong many times. He carried counterfeit goods for Anowar and Kumar (“2 clients”) who were members of the BJP [3].

4.On 29/7/2018, he carried goods for the 2 clients as before. The goods were forfeited by the Customs at Kolkata Airport. He was arrested and detained at the airport. The goods were worth about HK$ 1 million. He was granted bail a few days later.

5.Later on, the 2 clients demanded compensation for the goods seized. They threatened to beat him up. One day in September 2018, he met the 2 clients and their men at a local restaurant in Kolkata for negotiation. He was assaulted when they knew he was unable to pay the compensation. Eventually, his friend came to his rescue and took him to a hospital. He was given ointment and painkillers. He had bruises and swelling all over his body. It took him 2 weeks to recover. He did not report to the police. He thought the police would not assist as the 2 clients were members of BJP. In the next two months, the 2 clients came to his home occasionally asking for compensation. They threatened him.

6.On 8/11/2018, he met the 2 clients in a local restaurant by coincidence. He was assaulted by them outside the restaurant. They stopped after the police arrived. He did not complain to the police. He treated the bruises by himself. It took him 4 days to recover.

7.Two days later, he left his family home and stayed in a hostel in Taratala, Kolkata. He was safe there until he left India on 29/12/2018.

8.On 21/1/2019, he returned to Kolkata on the persuasion of his father. On 24/1/2019, the 2 clients forced him to bring drugs to Hong Kong or else they would kill him. He left Kolkata by air on 29/1/2019 carrying drugs to Hong Kong. He was told that the drugs were worth about HK$60,000. He was subsequently arrested in Hong Kong.

9.He did not think the police would assist. There would not be any fair trial in India. The 2 clients would be able to locate him anywhere in India given their connection.

The decision of the Director

10.The Director found that the risk that the applicant would be harmed by his client was low.  His claim was rejected for the following reasons: [4]

a.  There were 2 incidents of assault. He was not seriously injured. There were bruises and swellings. He did not need hospitalisation. His injuries did not attain a minimum level of severity. 

b.  During the encounters with the 2 clients, they did not show any intention to seriously harm or kill him. The second assault occurred when he accidentally met the 2 clients in a restaurant. They assaulted him with bare hands. Had they intended to cause serious harm, they had plenty of chances.

c.  It was a private financial dispute. His family was not harassed. There was no evidence that the influence of the 2 clients could extend beyond his home town.

d.  There was no evidence that the BJP was involved in this matter. The party had not mobilized its resources to assist.

e.  He was safe in Taratala for a month which was quite close to his home town. His fear of ill-treatment was unfounded.

f.  He was granted bail by the Indian court. He could leave India without any problem. He was not targeted by the government.

g.  The Director had considered relevant COI.  There were serious problems of corruption, human rights violations and ineffective law enforcement. The police were subject to political influence.  Nevertheless, there were positive steps taken by the government in recent years. The ACCI[5] was active in tackling corruption and other crimes.  Various states in India had measures to improve the efficiency of the police and received complaints through the Police Accountability Commission.  An aggrieved person could take the case to a superintendent or a magistrate if there was no investigation. There were news reports that the police had taken action against corrupt practices and even against leaders of the BJP. There was no evidence that the authorities were unable to discharge their duties.  The Director was satisfied that there was reasonable State protection.

h.  The law in India allowed internal relocation.  India was a large country with a population of about 1.3 billion.  The Director found that Delhi and Mumbai were suitable alternatives for relocation.  It was not unduly harsh for the applicant to relocate given his experience.

i.  The Director rejected all claims on 3/12/2019.[6]

The decision of TCAB

11.The applicant attended hearings on 6/3/2020 and 13/3/2020 [7]. The adjudicator pointed out the following reasons and concluded that the applicant was unreliable. There was no real risk of harm: [8]

a.  The applicant told the adjudicator that he learned the smuggling trade from his uncle and cousin while also going to school in 2012. This was contradictory to his NCF in which he mentioned that he finished education in 2011.

b.  In his 2^nd written signification, he asserted that the goods confiscated were worth HK$1 million. However, he told the adjudicator that he only spent HK$100,000 for the goods. He alleged that it was the Indian Customs who valued the goods as if they were genuine. The adjudicator opined that the applicant tried to exaggerate the debts owed to the 2 clients.

c.  The applicant mentioned an incident at the office of the 2 clients after he was granted bail. During that incident, they called his father threatening that they could do anything to the applicant if he failed to compensate them. This incident was never mentioned before. He explained that he had forgotten about it due to the stress staying away from home. The adjudicator did not accept this explanation.

d.  About the assault in a restaurant in September 2018, the applicant told the Director that the 2 clients phoned him to go to the restaurant and assaulted him. It was some passers-by who interfered and took him to a hospital. He however told the adjudicator that it was by coincidence that he met the 2 clients. They did not talk to him but just assault him. Some friends took him to a hospital. The adjudicator found this a material inconsistency.

e.  He did not mention to the adjudicator that the 2 clients came to his home occasionally asking for compensation between September and November 2018. He did not mention that he left home to hide in a friend’s place during this period. This was inconsistent with his NCF.

f.  About the assault on 8/11/2018, he told the adjudicator that once the 2 clients met him they immediately assaulted him. In his NCF, he asserted that the 2 clients told him to go outside the restaurant and then assaulted him.

g.  In his NCF, he alleged that he was alone staying in the hostel in Taratala. However, he told the adjudicator that he stayed with friends there.

h.  His fear for leaving home and later India in December 2018 was inconsistent with his return to Kolkata on 21/1/2019.  On the one hand, he was persuaded by his father to return to India to solve the problem, on the other hand he believed that the 2 clients would harm or kill him if he returned. He explained that his family was harassed. It transpired that they merely scolded his family in foul language.

i.  In his NCF, he asserted that he was forced to bring the drugs to Hong Kong or else his 2 clients would kill him. However, in his mitigation after pleading guilty to a Hong Kong court, he admitted that he brought those drugs to Hong Kong for a reward. He wanted to save his mother who was hospitalized. He had not told his lawyer that he was forced to bring the drugs to Hong Kong.

j.  Around February 2020, his friend in Hong Kong told him not to return to India as there would be danger. However, he could not explain what exactly was the danger.

k.  He never mentioned the position of the 2 clients in BJP. They were only members according to his NCF. However, he told the adjudicator that they were union secretaries. He could not elaborate further.

l.  The adjudicator found that there was reasonable State protection and reasonable relocation options.

12.The adjudicator rejected his claim on all grounds on 26/3/2020.[9]

Judicial review

13.The applicant filed the leave application for judicial review on 8/4/2020.  In his affirmation in support, he pointed out that he was detained in CIC[10]. He would be able to submit other documents when released.

14.During the interim, he filed an affirmation on 22/4/2021 to this court requesting to withdraw his leave application.  He submitted that his father was seriously ill and needed surgery. His problem in India had been sorted out.  He would like to depart Hong Kong as soon as possible.  Leave was granted to withdraw on 5/5/2021.

15.On 6/8/2021, he filed summons with affirmation requesting to re-instate his leave application.  He stated that the threat to his life still existed.  I grant him leave to re-instate.

16.This court fixed a hearing on 18/10/2021. He was absent.According to our record, the notice of hearing was sent to the updated address in the affirmation for re-instatement. There was no return of mail. I thus deal with his leave application on papers.

17.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.

18.I agree with the conclusion of the adjudicator. The applicant was not truthful.  Apart from the various inconsistencies pointed out by the adjudicator, his return to India in January 2019 is most telling—he could not compensate the 2 clients yet he returned to India knowing that they might harm him. This substantially affected his credibility.

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

Conclusion

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

Dated 21^st 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