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HCAL 1387/2020
[2020] HKCFI 2912
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1387 of 2020
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Mohammad Azaad |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge P. Li:
The application for leave to apply for Judicial Review be withdrawn.
Observations for the Applicant:
1. The non-refoulement claim of the applicant was rejected by the Director of Immigration on 28 September 2018. His appeal to TCAB was dismissed on 23 June 2020. He filed an application for leave for judicial review on 3 July 2020.
2. On 14 October 2020, he filed an affirmation to withdraw the leave application. He indicated that the problem he had before was resolved. He wanted to return to India.
3. Given the indication from the applicant, I grant leave for him to withdraw the leave application.
4. I have also considered the decision of TCAB. I would have refused leave for judicial review in any event. The following is the relevant considerations:
(a) The applicant was born on 11 October 1973 at Kolkata, India. He was married with 2 daughters. He received education for 5 years. He had 10 years’ working experience. He supported the Trinamool Congress Party (‘TMC’)
(b) He came to Hong Kong from China illegally on 1 December 2015. He was allowed to stay until 15 December 2015. He surrendered to the Immigration Department on 16 December 2015. He was granted bail and filed a non-refoulement claim subsequently.
(c) The basis of his claim was that he would be harmed or killed by the creditor if returned to India. He was unable to repay the loan.
(d) In February 2011, he borrowed a loan of 20 Lakhs from Mohammad Shamim (‘MS’).[1] There was no deadline for repayment of the principal but he had to pay a monthly interest of 2%. All went well until June 2015. His goods were seized by the customs. He could not pay the fine.
(e) On knowing this, MS pressed for repayment and threatened to harm his family. He did not report to the police as he thought it was a private dispute.
(f) He hid himself in Bihar for 2-3 months. MS did not trouble his family during this period. He however decided to come to Hong Kong to evade MS.
(g) The adjudicator decided that there was no need for an oral hearing.
(h) The applicant had never suffered any ill-treatment from MS. There was no harm inflicted on him and his family.
(i) MS had no intention to carry out the threat. The applicant did not report to the police as he thought he was obliged to pay.
(j) The applicant alleged that MS could have influenced the police. However, according to relevant COI, there were positive reforms in India. There was reasonable State protection of citizens. There was no evidence of State involvement, consent or acquiescence. There was no evidence that MS colluded with the police.
(k) India was a large country. The law allowed internal relocation. The adjudicator rejected the suggestion that MS would be able to influence the ‘TMC’ to locate the applicant all over India. It was not unreasonably harsh for the applicant to relocate.
5. The adjudicator concluded that there was insufficient evidence to support the claims under torture risk, BOR 2, BOR 3 and persecution risk. There was reasonable State protection. There were reasonable options for internal relocation.
6. In my view, this case was a private matter with very little evidence to support any head of the non-refoulement claim. The decision not to hold an oral hearing is justified. The decision of the TCAB was reasonable given the evidence of the applicant. There was no error of law or procedures.
Dated the 18th day of November 2020
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(Mike Mak) |
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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 the Applicant’s solicitors must:
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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)).
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Sent to the Applicant
on 18 November 2020
Mohammad Azaad
Applicant’s ref. no:
Nil.
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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 18 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13814/18/10/156/IN2726
Director of Immigration
(Putative Interested Party)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] One Lakh equals to 100,000 Indian rupees. The loan was about 2 million rupees.
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