Sk Shahid v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2069/2018

[2022] HKCFI 789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2069 of 2018

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 24/3/2014 as a visitor.  He was allowed to stay until 7/4/2014.  He overstayed until arrested on 13/4/2014.  He filed the non-refoulement claim on 15/4/2014.

Background

2.The applicant was born on 7/4/1984 in Kolkata, West Bengal, India.  He had education for 8 years.  He was single.  His family was in India.  He operated a clothing business since 2008.

3.Around mid-2011, he borrowed 2 million Indian rupees at a monthly interest of 20,000 rupees from a creditor (“B”) to expand his business.  The creditor was a member of the TMC[1] and a member of the legislative assembly.  He was influential.

4.About August 2013, he was bankrupt.  Two customers had defaulted payment of goods supplied on credit.  He could not pay any interest.  B pressed him for repayment.  B allowed him 2 months to repay.

5.In October 2013, B and his men assaulted him as the deadline had expired.  It took him a week to recover.  He promised to repay as soon as possible.  B warned him of more trouble if he failed to repay.  He closed down his business and hid at home for 2 months.

6.Two months later, he met B on the street. B assaulted him again.  Some passers-by intervened.  B left the scene.  He was not injured.

7.One day in January 2014, B came to his home with some men.  They assaulted him and threatened to kill him.  His neighbours intervened and saved him.  He had no major injury.  He treated himself at home.  It took him 15 days to recover.

8.He borrowed money from a friend and left India in March 2014.  He encountered no problem.  According to his friend, B still asked about him after he left India.  It was not safe to return.  His family was not attacked.

9.He did not report to the police or other authorities as B had connections with them.  He did not know anything about the complaint channels.  B could locate him in Delhi and Lucknow.  B would be able to trace him as he was powerful.

The Decision of the Director

10.The Director found that there was no real risk of harm from B:

(a)     B and his men came to his house several times.  They assaulted and threatened him.  They did not hurt him seriously.  He did not seek medical treatment.  There was no injury of a minimum level of severity.

(b)     B had no intention to kill him. B just put pressure on him to repay.  This was evident when B extended the deadline repeatedly.

(c)     He was safe at home before leaving India.  B had not step up the threat or harass his family.

(d)     He chose not to report to the police.  It was not that his request for assistance was ignored.

(e)     There was no evidence that he was targeted by the government.  He could depart India without any difficulties.  There was no involvement of any political party.  It was inconceivable that the TMC would get involved in such a private dispute. 

(f)     The Director had considered various COI.  While there were serious corruption, human rights violations and abuse of power in the police, there were reforms with positive results.  There were complaint channels to the Superintendent or a magistrate if the police failed to take action. The National Human Right Commission was tasked to investigate violations and to promote public awareness of human rights.  There were news reports that police officers and politicians were arrested for corruption.  The Director was satisfied that there was reasonable State protection.  There was no evidence that the government was unable to enforce the law or tolerate unlawful conduct.

(g)     The Director found that Ghaziabad and Mumbai were suitable alternatives for relocation.  The law allowed internal relocation.  India was a large and populated country.  It was not unduly harsh for the applicant to relocate.

11.The Director rejected his claims on 30/10/2017.

The Decision of TCAB

12.The adjudicator held an oral hearing on 6/8/2018.  He concluded that the applicant was not credible.  He rejected the factual basis of the applicant’s claim.  He found no real risk of harm.  He dismissed the appeal on 24/9/2018.  The main reasons were as the following:

(a)     The applicant told the adjudicator that he borrowed the loan to start a business in 2012.  Whereas, he stated in the NCF that he started the business in 2008 and borrowed the loan to expand his business in 2011.

(b)     The applicant was evasive when asked by the adjudicator about any loan contract.  He told the adjudicator he had a close relationship with B but that contradicted his NCF.

(c)     According to some COI, B was not a member of the legislative assembly.  B had changed his allegiance to the BJP[2] in 2015.  This was inconsistent with the applicant’s evidence and contradicted the assertion that he had a close relationship with B.

(d)     The applicant stated in the NCF that his business collapsed because 2 customers defaulted payment of goods on credit.  However, he told the adjudicator only 1 customer defaulted payment. The other one was his employee.

(e)     The applicant told the adjudicator that he was assaulted once by B and his men.  However, in his NCF, he mentioned 3 assaults.

(f)     The adjudicator rejected the explanation it was failure of memory due to lapse of time.  Those were significant facts which would not be easily forgotten.

Judicial Review

13.The applicant applied for leave for judicial review on 28/9/2018.  In his supporting affirmation, he did not specify any error in the TCAB decision.  He wrote to this court on 16/12/2020 asserting that his documents were in India.  It was impossible to get them because of the pandemic.  He asked for more time to file the documents.

14.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.

15.The adjudicator had pointed out the contradictions to the applicant during the oral hearing.  His explanation was rejected.  I agree with the comment of the adjudicator that those were important facts which would not be easily forgotten. 

16.The applicant asked for more time to submit documents. He did not indicate in his letter what were the documents.  He came to Hong Kong in March 2014.  The pandemic only started about 2020.  He had more than 5 years to obtain those documents.  It is unreasonable that he still needed time.

17.In my judgment, there is no error of law or procedure.  The decisions are reasonable.

Conclusion

18.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 2022.   

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