QURAISHE JALIL AHMED v. DIRECTOR OF IMMIGRATION

HCAL 193/2017
HCAL 194/2017
HCAL 195/2017
HCAL 197/2017
[2018] HKCFI 454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 193 of 2017

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 194 of 2017

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 195 of 2017

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 197 of 2017

(Heard Together)

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant of HCAL 193/2017 (“A1”) is a 39-year old Indian male whereas the Applicants of HCAL 194/2017, HCAL 195/2017 and HCAL 197/2017 (respectively “A2”, “A3” and “A4”) are respectively his 41-year-old wife, his 21-year-old son and his 15-year-old daughter.  In November 2012 A1 entered Hong Kong illegally from Mainland China and was subsequently arrested by police on 25 January 2013 when he then raised a torture claim.  He was subsequently charged and convicted of misleading the police and for entering and remaining in Hong Kong illegally and was sentenced to prison for 15 months.  Whilst in prison on 6 July 2013 he lodged a claim under torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights (“HKBOR”) Ordinance, Cap 383 (“BOR 3 Risk”) as he fears of being harm or killed by members of a local rival political group Trinamool Congress Party (“TMC”) and by two suppliers of his garment business for failing to repay them for money owed, and on 4 December 2013 he was released on recognizance pending investigation of his claim.

2.  On 18 December 2013 A2, A3 and A4 arrived from India with permission to remain in Hong Kong as visitors until 1 January 2014, during which they made an asylum claim to the United Nation High Commissioner for Refugees (“UNHCR”) office in Hong Kong, and when they overstayed thereafter, they were accompanied by A1 to surrender to the Immigration Department and were subsequently released on recognizance.  On 11 March 2014 A2, A3 and A4 also lodged a non-refoulement claim for protection with the Immigration Department based on A1’s claim, and with legal assistance and representation under the Duty Lawyer Service, all the applicants requested in writing for their non-refoulement claims to be dealt with jointly together. For obvious and convenient purposes I shall also deal with their present leave applications together.

3.  The applicants’ case is that A1 was born and raised in Kolkata, India where he ran a garment business and later married A2 in about 1996.  In 2002 he joined the Communist Party of India (Marxist) (“CPIM”) as an ordinary member and became the general secretary of the Khidderpore Local Committee of CPIM where he would attend meetings and rallies and promoting the party by persuading people to join and putting up posters and banners.  His brothers were also members of CPIM.

4.  In about 2009 or 2010 TMC won the local election and came into power in the applicants’ home district.  One evening in mid-2010 some TMC members asked A1 to meet them in a club house where they were drinking and then started scolding A1 and proceeded to punch and kick him before he managed to escape.  As a result A1 suffered bruises on his back and legs as well as his testicles which subsequently required an operation, but when he reported the assault to the police, they did not take any action and instead just asked him to stay away from the TMC people.

5.  After his discharge from the hospital A1 hid at home to avoid the TMC people but continued to receive threatening phone calls from them even after changing his phone number which caused him great stress and was subsequently diagnosed with diabetes.  Eventually A1 became so fearful of the TMC people that he decided to close down his garment business and went into hiding in Mumbai while the rest of the family remained in Kolkata.

6.  For the next few months the TMC people ceased their disturbances, and in late 2010 A2 asked A1 to return home as his father was seriously ill, and so A1 returned home where he started another garment business at Esplanade some half-an-hour drive from Kolkata, during which there were no further disturbances from the TMC people, but his garment business went bad resulting in great financial losses, and as a result A1 became in debt to his suppliers S and G in the total sum of 5 million Indian Rupees for their supplies on credits which he was unable to repay.

7.  One evening in early 2012 A1 was abducted by people whom he believes to be members of TMC demanding him to repay his debt due to S and G as soon as possible and failing which he would be killed before he was eventually released.  Upon returning home A1 did not report the matter to the police but suffered a heart attack for which he was hospitalized for more than a week.  After discharged from hospital he rested at home until mid-2012 when he went into hiding in Delhi for one month during which both his creditors and the TMC people continued to look for him in Kolkata and threatened his family as well, he therefore decided to leave India for his own safety and paid an agent to arrange to come to Hong Kong in November 2012 via Bangladesh and Mainland China for which he was subsequently arrested by the police.

8.  While he was in prison A2 would from time to time travel to Hong Kong to visit him, but with his creditors and the TMC people still looking for him in Kolkata, and when she refused to disclose A1’s whereabouts, they started to threaten her and the children as well, and after an occasion in 2013 when they pushed and punched A3 and that the police failed to take any action, A2 decided to also leave India as well with the children and together they arrived in Hong Kong in December 2013 for non-refoulement protection with the Immigration Department.     

9.  By a Notice of Decision dated 10 March 2016 the Director of Immigration (“the Director”) rejected all the applicants’ claims on all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383, 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”).

10.  In applying the appropriate legal principles with a high standard of fairness, the Director proceeded with the assessment of the applicants’ claims on the assumption that they were true, noting though that most of them were bare assertions unsupported by any documentary evidence other than a name card of A1 as CPIM general secretary, a copy of his medical report but which does not support his claim of any heart problem, and a receipt from the police for which A2 claimed that she was issued for her report about the threats from the TMC people, but none of which the Director considered would serve to advance their claim.

11.  It was however on the assumption that their claims were true that the Director proceeded to assess that the level of risk of harm by either A1’s creditors or the TMC people upon their return to India in their circumstances is low or unlikely to materialize, after having carried out detailed consideration and meticulous analysis of each and every one of their alleged incidents and set against the findings that they were all local private disputes with no official involvement, and that based on numerous objective country of origin information (“COI”) that state protection is available and internal relocation is in their circumstances reasonable for the applicants to return to other parts of India away from their home area that it was concluded that their claim on all applicable grounds failed.     

12.  By a Notice of Further Decision dated 8 March 2017 the Director again rejected the applicants’ claims after having earlier by a letter dated 21 February 2017 invited them to submit additional facts relevant to their claims on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”) but not receiving any from them.   

13.  By then the applicants had already filed their appeal against the earlier decision of the Director to the Torture Claim Appeal Board (“the Board”), which they did on 21 March 2016, and after attending an oral hearing on 17 March 2017 during which both A1 and A2 gave evidence and answered questions put to them by the Adjudicator, their appeal was dismissed by the Board on 26 April 2017 which also confirmed both decisions of the Director.

14.  It is noted from the Board’s decision that for the appeal it listed eight material assertions of the applicants that it considered to have no or insufficient objective support for its consideration, including all the alleged threats and incidents relied on by them in their claims, and took both A1 and A2 through each and every one of them during the oral hearing with questions put to them and for their comments, and thereafter set out in its decision very careful and meticulous analysis of their evidence with clear rationale and explanations as to why even on a low standard of proof it considered their accounts as implausible, as it stated in its conclusion on their credibility at paragraph 67:

“ After considering A1’s evidence in the round, the Board considers his account implausible, there is no reliable evidence to substantiate A1’s account about the 1^st Incident, the 2^nd incident, his heart attack, and the Debt. There is no objective evidence to substantiate A2’s account about those oral threats from unknown callers, and that S and G had vandalized her house and hurt A3. There is no evidence to support A1’s allegation about the death of his 2 cousins or that their death was related to his claim for non-refoulement protection. There is also no evidence to substantiate A1’a account that his mother’s house had been vandalized by TMC members because of him.”

15.  It was on the basis of such findings that there was no reliable evidence that the alleged acts of torture had inflicted on the applicants or any of them pain or suffering, and on the basis of the numerous objective COI that the Board went on to consider and ultimately reject their claim for non-refoulement protection on any of the relevant grounds including torture risk, BOR 2 and 3 risks and persecution risk.

16.  Similarly on the basis of the objective COI, the Board went on to consider the issue of internal relocation and concluded that it is available and reasonable for the A1 to return to live and work safely in India other than his home area and for A2 to A4 to relocate with him as it explained as follows:

“113. During interview by immigration officers, A1 expressed that internal relocation in India was not a possible alternative because TMC being the ruling party at West Bengal of India was powerful and influential and its members could locate A1 and his family members wherever they hide in India. Moreover, A1 said that it was impossible for his whole family to move to other areas in India due to his financial situation.

114. However, the Board finds that there is no reliable evidence to substantiate that the Applicants are targeted by all TMC members. The Board does not accept that the influence of S and G, if indeed any, will extend beyond A1’s home area. Even assuming that the Applicants may still face risk of harm from S and G if refouled, the Board considers that the level of risk of harm will be further lowered or even negated if the Applicants move to reside in other states where TMC is not the ruling party, such as Ranchi in Jharkhand (Bharatiya Janata Party), Patna in Bihar (Rashtriya Janata Dal) or Lucknow in Uttar Pradesh (Samajwadi Party). The Board does not find it unduly harsh for the Appellants to move to reside in those states where TMC is not the ruling party in order to minimize or negate the risk of harm from TMC.

115. In short, Ai is an able-bodied male aged 39 with 11 years of education and at least 16 years of working experience as proprietor in garment industry.  It is reasonable or not unduly harsh for A1 to reside and work anywhere within the Home Country.  There is no COI or evidence suggesting that it is unduly harsh for A2 to A4 to move to reside in other states of the Home Country together with A1.”

17.  Having applied the proper legal principles in the consideration of the applicants’ claim on all applicable grounds, and in accepting a low standard of proof on their part but applying a high standard of fairness in assessing their credibility, and with the ample objective COI before it, it is my judgment that the Board was entitled to make its findings and reached its conclusion. 

18.  Nevertheless on 10 May 2017 the applicants filed their Form 86 for leave to apply for judicial review of those decisions of the Director and the Board, and in their supporting affirmation of the same date they set out their grounds which are all identical, but exhibited to A1’s affirmation is a five-page statement with more details and particulars of the grounds for their intended challenge, of which if read together can essentially be summarized as follows:

(a) lack of opportunity to produce additional information as they did not receive the letter from the Director inviting them to do so regarding BOR 2 risk, and that had such opportunity been given, they could provide information concerning attack and torture against their family after they left India;

(b) that the Immigration Officer misdirected herself on the law in failing to consider and assess whether state protection existed under Article 3 for torture and CIDTP;

(c) that there was unfair procedure in assessing their claims when decision maker failed to carry out sufficient research and inquiry into COI, or to take into account or to put sufficient weight on relevant information, or failure to evaluate and make proper finding of facts as to pattern of abuse and torture in India before deciding that their fear was not well-established or that internal relocation was reasonable for them.  

19.  Of the ground under (a) of lack of opportunity to put forward additional materials in respect of BOR 2 risk, this is what A1 said in his five-page exhibit of what these additional materials are:

“ 5. Officer still simply reiterate on all previous information and stressed on previous NOD but officer did not realize the current situation which we are suffering now and this situation can be killed/tortured in future that’s why we had applied BOR2 to seek protection from Hong Kong government but immigration had issued me further Notice of Direction without inform me just base on a letter which I never received and I am reporting to immigration department regularly but we had never been informed by my reporting case officer according to our BOR2 invitation for additional facts and grounds and they had reached to determine about my Further Notice of Decision just relied on my previous facts which is totally unfair and injustice with me. After I left India, a lot of things happened and circumstances had been changed and so many things had happened just base on my political activities and the debt money which I got from creditors to re-establish my business. When they were looking for me and they couldn’t get approached to me so they always threat to my wife regularly. After my family reached Hong Kong so last year they went to my place and they tortured my mother and he gets mad while he failed to get information about our whereabouts. My mother refused to tell him my location. They came along with many of fellow people and they had burnt my home and tortured my sister and mother and they had made so much violence to take revenge of our political affiliation with opposite political party and their debt money to me, in result of which my sister get injured and few days later she died in result of which this torture. My mother also gets serious injuries and police did not investigate honestly because of his influence with political party and he had bribed money to police. Police has misled the investigation to an accident and I had lost my sister and we could not get any justice. These incidents show that we would still face life threat risk upon return to my home country. We wanted to submit additional facts but I was failed because I did not get any letter from immigration department. I hope your owners will give me chance to rely on my additional facts.”

20.  These additional facts of A1’s house being burnt, his mother and sister being tortured with the latter having later died from her injuries, all of which according to A1 occurred in the year before his affirmation hence in 2016, and therefore could surely have been disclosed by the applicants in their appeal to the Board, or at least at the oral hearing on 17 March 2017, but according to their evidence and answers to numerous questions put to them by the Adjudicator at the hearing, A1 only mentioned that his mother’s house had been vandalized by the TMC members.  At paragraph 65 of the Board’s decision, the following was said:

“ During the Hearing, A1 said that his mother’s house had been vandalized by TMC members because of him. A1 did not say that TMC members had inflicted any physical harm upon his mother and sister during the incident. A1 did not adduce any evidence to substantiate his account about the incident.”

21.  In fact, both A1 and A2 had had ample opportunity to disclose those additional facts at the hearing, as noted above they were taken through their material assertions including all the alleged threats and assaults by TMC members and A1’s creditors, and of which they gave evidence and answered all the questions from the Board, but none of those alleged additional facts were ever mentioned by either A1 or A2 at all during the hearing.  If indeed there were any truth in any of these allegations of such severity and consequences against his mother and sister in 2016, it is inconceivable that A1 would refrain from mentioning them to the Board at the appeal hearing.  There is therefore no merit at all in this ground.     

22.  As for ground (b) of failure to consider whether state protection was available under Article 3 for torture and CIDTP, I note from the Director’s decision dated 10 March 2016 that during his interview of A1 discussions were held about the availability of state protection and his comments were sought, and then the Director in his decision devoted 12 pages (paragraphs 41 – 51) analyzing in details the current situation and availability of state protection in India based on numerous objective COI and why it was thought that such protection would be available to further lower or negate the level of risk to the applicants.

23.  Similarly the Board did also give proper and careful consideration of the availability of state protection in India in its decision (paragraphs 83 – 92) based on the numerous COI listed under paragraph 31 and last accessed on 20 March 2017, and found that there is no evidence suggesting that A1 was persecuted by State actors back home, or that his creditors and TMC members were acting in any official capacity against A1, and that although there is COI showing that some of the police force may be corrupt, steps have been taken to improve the situation and that a reasonably effective criminal legal system does exist in India.  The Board also considered that the influence and power of A1’s creditors and the TMC members is localized in A1’s home district, and that there is nothing to suggest that the creditors can mobilize any manpower or resources of TMC to hunt down A1 and his family if they move to reside in other part of India, and concluded that reasonably sufficient State protection is available to the applicants in their home country.

24.  Accordingly and in the absence of any particulars or specifics from the applicants, I do not find any merit in this complain of the applicants.

25.  As regards the complains under (c), again the applicants did not refer to any COI to which they claim that the Director or the Broad failed to give proper consideration or sufficient weight or make findings of facts in their assessment of internal relocation available to them, and upon rigorous examination and anxious scrutiny of their very carefully detailed and meticulously analyzed decisions, I find that both the Director and the Board did already properly and sufficiently deal with the issue of internal relocation, and I do not see any merit in the applicants’ complains under this ground. 

26.  In the premises and for the reasons given, I do not see any ground of the Applicants which shows any error in law or procedural unfairness in the decisions of either the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of their claims.  I am therefore not satisfied that their intended applications for judicial review is reasonably arguable or have any prospect of success, and accordingly I refuse their leave applications.

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