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HCAL 2986/2018
[2021] HKCFI 1988
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2986 of 2018
BETWEEN
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MD Tarik |
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 |
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:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. On 28/3/2008, the applicant was permitted to stay for 7 days as a visitor in Hong Kong. He overstayed until he was arrested on 4/6/2008. He then filed a torture claim on 11/6/2008. His claim was taken to be a non-refoulement claim upon the commencement of the USM in 2014.[1]
2. The applicant claimed that he might be killed by the family of Muna. They alleged that he was responsible for the death of Muna.[2]
3. The non-refoulement claim was dismissed by the Director on 23/2/2016. The Director also dismissed the BOR 2 claim on 28/2/2017. His appeal to the TCAB was dismissed on 25/4/2017.
4. The applicant filed the leave application for judicial review on 27/12/2018. He sought leave to review the decisions of the TCAB and the Director. He was out of time for 17 months. In his Form 86 and affirmation, he did not seek extension of time for the leave application. There was no explanation about the delay.
Background [3]
5. The applicant was born on 18/8/1984 in Kolkata, West Bengal, India. He had education for 4 years. He was a Sunni Muslim. From 1997—2005, he worked in a workshop and later ran his business manufacturing bangles. His mother and siblings were in India. He was single. He was never in trouble with the police in India. He was a supporter of the Communist Party of India (Marxist).
6. In the afternoon on or about 7/3/2008, he played a game of carrom with 3 others including Muna. During the game, Muna and SH had a fight. SH hit the head of Muna with a dumbbell. He and SH then left. Muna later died of the injury. A report was made to the police alleging that he was responsible.
7. On the day after Muna died, Muna’s brothers Azad (‘A’) and Miraj (‘M’) came to his home with 30 men from the Muna’s family. They mistakenly believed that he was responsible. There was no violence. His family did not disclose his whereabouts.
8. About a week later, ‘A’ and ‘M’ came again with about 60 men. They broke the door of his home. His family gave them his telephone number. ‘A’ and ‘M’ could not locate him. He hid at various places in Kolkata for about 20 days.
9. ‘A’ eventually got hold of him on the phone, it was agreed that he and SH would have a meeting with ‘A’. However, SH disappeared shortly before the meeting. ‘A’ was very angry and threatened to kill him. He decided to leave India. He left on 28/3/2008 for Hong Kong. He did not know the whereabouts of SH.
10. While he was in Hong Kong, ‘A’ and ‘M’ continued to look for him at his home about 4 times a month. They harassed his family.
11. He thought it was useless to report to the police as ‘A’ and ‘M’ were from a rich and influential family. Internal relocation was not feasible.
The Decision of the Director
12. The Director pointed out the following to conclude that the level of risk of harm from ‘A’ and ‘M’ was low:[4]
(a) The applicant did not attempt to explain that he was not involved in the fight. Instead, he hid himself at various places after the incident. This conduct brought suspicion on himself.
(b) The conduct of ‘A’ and ‘M’ had nothing to do with the INC party [5]. They just wanted to take revenge against the applicant. There was no evidence that the police or the State had consented or indifferent to the conduct of ‘A’ and ‘M’. It was his speculation and his own choice not to make a report.
(c) ‘A’ and ‘M’ had never confronted the applicant before he left India. There was only verbal threat on the phone. There was never any injury inflicted on the applicant amounting to a minimum level of severity.
(d) The applicant and SH were never located. ‘A’ and ‘M’ only came to the applicant’s home to ask about him. There was no evidence that ‘A’ and ‘M’ had the resources of locating the applicant elsewhere in India.
(e) There were COI reporting widespread abuse of power and political influence of the police. On the other hand, there were COI which showed objective improvement. There was police complaints commission established which aimed to investigate and punish police misconduct and corruption. There were complaint channels to the District Superintendent or a magistrate. There were public interest petitions against public officials involved in corruption and misconduct. National Human Rights Commission was in place to deal with police misconduct. Ombudsman organizations were established to monitor corruption and misconduct of public officials. The Director was satisfied that there was reasonable State protection.
(f) The Director found that there was reasonable opportunity for internal relocation. The law permitted internal movement. India was a large country with a population of about 1,200 million. Delhi was a possible option. It would be difficult for ‘A’ and ‘M’ to locate him. It would not be unduly harsh for him to relocate given his age.
13. The Director found no evidence of ill-treatment amounted to ‘a minimum level of severity’. The was no genuine and substantial risk of ill-treatment. There was no real risk of arbitrary deprivation of life if he returned to India. The dispute was personal. There was no involvement of public official nor would they turn a blind eye to the conduct of ‘A’ and ‘M’. The applicant was not within any category of persons vulnerable to persecution according to the Refugee Convention. His fear was not well founded. The Director dismissed all claims. [6]
The Decision of TCAB
14. The applicant attended a hearing on 28/3/2017 before the TCAB. The adjudicator pointed out the following points which affected the credibility of the applicant:[7]
a. The applicant did not file his non-refoulement until he was arrested on 4/6/2008 for overstaying. By then, his visitor visa had expired by about 2 months. The applicant could not justify the delay. This was damaging to his credibility.
b. The applicant was evasive and vague during the oral hearing. Some of his evidence was hearsay which was speculative and unreliable.
c. There was reliable COI which showed that internal relocation was available. The applicant’s assertion that he could easily be located was not justified. There was no evidence that ‘A’ and ‘M’ had searched for the applicant outside the vicinity of the home town.
d. There was no evidence that the INC party was involved. There was no evidence that the police or the State were indifferent to the conduct of ‘A’ and ‘M’.
e. The applicant did not suffer any injury. There was only a death threat on the phone. There was no real and substantial risk of harm.
f. The evidence did not support any fear arising from persecution as defined under the Refugee Convention.
g. There was no torture as defined under s.37U (1) of the Immigration Ordinance. There was no evidence that the acts of ‘A’ and ‘M’ were instigated, acquiesced or consented by the State.
h. There was reasonable State protection and internal relocation options.
15. The adjudicator rejected the evidence of the applicant that he was targeted by ‘A’ and ‘M’. He rejected the appeal and confirmed the decision of the Director.
Judicial Review
16. The applicant filed the leave application for judicial review on 27/12/2018. He was out of time for about 17 months. He did not apply for extension of time for the leave application.
17. In the Form 86, the applicant did not specify any error of the decisions of the TCAB and the Director.
Out of Time Leave Application
18. As mentioned above, the leave application was out of time for about 17 months. He should have first sought an extension of time.
19. In considering whether there is good reason for the extension of time, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [8]
20. The applicant did not state any specific ground for judicial review in the affirmation. He attached exhibit “A” which consisted of a letter and 8 pages of documents. In that letter dated 20/10/2017, the Director informed the applicant that his claim had already been dismissed on 23/2/2016 and 28/2/2017. The TCAB had confirmed those decisions on 25/4/2017.
21. Also in the exhibit was another 8 pages which were part of the Director’s decision in another case in relation to an applicant from Indonesia. These pages were irrelevant and demonstrated the perfunctory attitude of this applicant.
22. In response to the letter of this court dated 6/3/2020, the applicant wrote to this court on 16/3/2020 confirming his phone number and address. However, he stated in his letter that he did not receive any decision from the Director and the TCAB.
23. From the court record, the 1st decision of the Director dated 23/2/2016 was sent to the DLS as a matter of practice. It must be translated to the applicant under normal circumstances.
24. For the 2nd decision of the Director dated 28/2/2017, it was sent to an address at Lock Road. The decision of the TCAB dated 25/4/2017 was also sent to this address. However, according to the letter in exhibit A dated 20/10/2017, the applicant had changed to a new address at Chun King Mansion. There was no information when was this change. He however had a duty to update his address with the Immigration Department and the TCAB. This court can safely assume he had not done so given that both decisions were sent to the old address. He must bear the consequence of any problems in the correspondence caused by the change of address.
25. In my view, the applicant must be aware of the result of his claim latest by 20/10/2017. It was unreasonable that he took more than a year to file the leave application on 27/12/2018. In any event, he did not raise this issue as a ground for the delay in his leave application.
26. I have also considered the merits of the intended judicial review. I agree there is no merit. The decisions of the TCAB and the Director are reasonable. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success.
Conclusion
27. In the circumstances, there is no good reason for extending the time for the leave application. I refuse leave to apply for judicial review.
Dated the 8thday of July 2021.
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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 8 July 2021
MD Tarik
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 8 July 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3260/16/3/65/IN757
Director of Immigration
Putative Interested Party’s ref. no.:
Q/A T/C 1609/08 & RBCZ/9000323/17
(formerly RBCZ/1178/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] During the interim, the applicant was convicted of offences including possession of part I poison, illegal employment and trafficking in a dangerous drug.
[2] Decision of the Director, dated 23/2/2016, §14.
[3] Decision of the Director dated 23/2/2016, §§15.1—15.25.
[4] Decision of the Director dated 23/2/2016, §§25—36.
[5] Indian National Congress.
[6] Decision of the Director dated 23/2/2016, §§37—49 and 28/2/2017.
[7] Decision of the TCAB dated 25/4/2017, §§30—57.
[8] [2020] HKCFA 22, para 37.
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