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HCAL 2953/2018
[2020] HKCFI 2964
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2953 of 2018
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Khan Shahbaz |
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:
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. The applicant came to Hong Kong on 12 May 2008. He was arrested for overstaying on 21 July 2008. He filed a torture claim on 25 July 2008. He was granted recognizance.
2. In 2009-2011, he was sentenced to imprisonment for various offences [1]. He was granted recognizance on 5 March 2012 after serving his sentence.
3. He failed to report to the Immigration Department and was arrested on 9 July 2013. He withdrew his torture claim on 24 October 2013. It transpired that he had already filed a non-refoulement claim on 21 October 2013. He was granted recognizance again.
4. From March 2014 to April 2017, he was sentenced to imprisonment several times for theft. He was still serving sentence at the time of the assessment by the Director.[2]
Background
5. The applicant was born on 4 April 1993. He was brought up at Ibrahim Road, Khiderpur, Kolkata, India. He was educated up to class 6. He had no working experience. He was single. His father had passed away. His mother and two siblings were in India but he had lost contact with them.
6. He inherited a plot of land in Khiderpur from his father. However, as he was under 18, his mother look after the land for him. He had lost contact with his mother. He could not produce any title document.
7. He had two uncles in the neighbourhood. They were rich and had good connections with the police. They supported the Congress Party during election in 2006.
8. Since 2006, his uncles pressurized his family to transfer the title of the land to them. They used abusive language and even assaulted him. His mother treated him with ointment and bandage his injured parts. He did not report the assault to the police as his mother thought it was useless.
9. In 2007, his mother sent him to stay with an auntie in Delhi. He stayed for 2 weeks and returned to Kolkata. His uncles came and assaulted him again. He and his mother then fled to Mumbai for about 25 days. His mother arranged a passport for him before returning to Kolkata. He stayed with his mother’s friends in Kolkata.
10. On 11 May 2008, his mother arranged him to take a flight to Hong Kong through a friend Papu. He stayed with a friend of Papu until he was arrested about 4 months later. He did not file any non-refoulement claim immediately as he had insufficient knowledge. He last contacted his mother in 2012. His mother told him his uncles were putting pressure on her to transfer the land title.
11. He did not think the police would protect him as his uncles were wealthy and powerful. He met a neighbor at Chung King Mansion in Hong Kong. That neighbor told him that his family had moved. He suspected that his uncles might have occupied the land and forced his family to leave.
12. He was afraid that his life would be in danger if he returned to India. His uncles would kill him in order to take the land.[3]
13. He had lost contact with his family for 5 years. He had not thought of relocating to other places in India.
The Decision of the Director
14. The Director pointed out the following to conclude that the future risk of harm was low [4]:
(a) The applicant claimed to have been assaulted by his uncles in 2006-2007. He was only treated by his mother afterwards. There was no evidence that he had sustained serious injuries amounting to “a minimum level of severity”.
(b) In 2007-2008, during his stay in Mumbai and New Delhi, he was not located. When he stayed with his mother’s friend in Kolkata, he was not located. This showed that his uncles were not so influential as he claimed.
(c) He had lost contact with his mother for 5 years. There was no updated information about his uncles. Even accepting his uncles had illegally occupied the land, there was no reason for the uncles to continue locating him all over India.
(d) There was no evidence that the police would not assist him. It was his mother’s decision not to report to the police after the alleged assault.
15. There were COI reporting widespread corruption and police abuse of power and incompetence. There were COI which showed objective improvement in recent years. A person could complain to the District Superintendent or a magistrate if the police refused to register a case. Besides, a person might approach the Central Vigilance Commission, and the Punjab Police Helpline for assistance. The Director found that the Indian government had taken measures to improve police professionalism. There was no evidence that the Indian government would not protect its citizen and enforce the law.
16. The Director found that there was reasonable opportunity for internal relocation. The law permits internal movement. India was a large country with a large population. There were big cities such as Delhi and Mumbai. Given that his uncles influence was localized, it would not be unduly harsh for him to relocate given his age.
17. For the claim under BOR 2 and BOR 3, the Director found no evidence of ill-treatment amounted to ‘a minimum level of severity’. The evidence did not support a genuine and substantial risk of ill-treatment if returned to India. The applicant had no real risk of arbitrary deprivation of life. Both claims failed.[5]
18. For persecution risk, the applicant was not within any category of persons vulnerable to persecution risk according to the Refugee Convention. The whole case was a private land dispute. This claim failed.[6]
19. For torture risk under s 37U (1) of the Immigration Ordinance, the applicant had withdrawn his claim on 24 October 2013. Under the USM, this withdrawal would not be reviewed.[7]
The Decision of TCAB
20. The adjudicator had considered the written representation (25 July 2008), TCF (19 September 2013) and SCF (7 August 2017), the record of the screening interview (22 August 2017), the decision of the Director (25 August 2017), the Notice of Appeal (7 September 2017) and various COI.
21. The applicant defaulted the oral hearing fixed on 5 March 2018. The applicant did not file any explanation in response to the request letter. The adjudicator decided to proceed with the appeal in his absence.[8]
22. The adjudicator pointed out the doubtful aspects of the applicant’s case. He was unable to clarify as the applicant defaulted the oral hearing. The adjudicator considered the existing material and concluded that the applicant did not tell the truth. The following was the main doubtful aspects:
(a) If the applicant feared to return to India, why did he withdraw the claim in 2013.[9]
(b) According to the TCF, the applicant mentioned that he was the eldest son and thus inherited all the land from his father. By the same reasoning, one of the uncles, who was older than the applicant’s father, should have inherited all the land from his grandfather.[10]
(c) The pressure from the uncles started in 2006 and continued until May 2008 when the applicant left for Hong Kong. The applicant needed to explain how he withstand the pressure within these two years.[11]
(d) According to Indian law, a person could only enter into a contract after attaining the age of 18. As the applicant would only be 18 by 2011, he could not legally transfer the land title by way of a contract in 2006-2008. His fear that the uncles might force him to sign transfer documents was not real.[12]
(e) The applicant’s mother looked after the land for him under the law. There was no evidence that the uncles had tried to harm his mother or siblings. If the applicant died intestate, the uncles might still not be able to obtain the title of the land. It was not to their interest to kill the applicant.[13]
(f) Even though the uncles supported the Congress Party in 2006. There was no evidence how this affected the applicant in this dispute.
(g) The uncles had occupied the land for about 10 years already as the applicant claimed. He could relocate to other cities such as New Delhi and Mumbai and stayed away from his uncles.
23. Given the above, the adjudicator concluded that the applicant was not truthful. The adjudicator did not accept that the uncles sought to take the land. There was never any threat or assault. There was no need for the applicant to leave India for his safety.[14]
24. The adjudicator rejected the appeal on 18 April 2018 as follows:
(a) The adjudicator found that the applicant did not face a genuine and substantial risk of ill-treatment. There was no real risk of CIDTP under BOR 3 risk.[15]
(b) Given the circumstances of this case as stated above, there was no risk of arbitrary deprivation of life. BOR 2 claim also failed.[16]
(c) The adjudicator pointed out that there was no risk of harm based on Convention reasons. This claim failed. [17]
Judicial Review
25. The applicant filed the leave application for judicial review on 24 December 2018. He was about 5 months out of time as the decision of the TCAB was given on 18 April 2018. In the Form 86, he only sought to review the decision of TCAB dated 25 August 2017 [18]. He did not apply for extension of time for the leave application.
26. There was an error as to the date of the decision of TCAB, it should be 18 April 2018. I take it that the applicant sought to review the decision of the TCAB.
27. In his affirmation in support of the leave application, the applicant only mentioned that he was not satisfied with the decision of the TCAB. He mentioned that his life was in danger in his home country. There was no attempt whatsoever to explain his absence from the hearing scheduled before the TCAB, nor was there any complaint about the appeal in his absence. [19]
TCAB Appeal
28. The adjudicator was satisfied that the notice of hearing was sent to the applicant in accordance with sections 13 & 15 of Schedule 1A of the Immigration Ordinance [20]. Likewise, he was also satisfied that the notice for written explanation for failure to attend the hearing was in accordance with section 15 (2). The adjudicator must also be satisfied that all correspondence was sent to the last known address of the applicant.[21]
29. It is the duty of the applicant to update his address with the Director and the TCAB under s 37ZA (2) of the Immigration Ordinance. Even if he had changed his address, he should have arranged a method to obtain the mail.
30. In my judgment, the adjudicator was right to determine the appeal in the absence of the applicant given the circumstances.
Out of Time Leave Application
31. As mentioned above, the applicant was out of time for about 5 months. He should have first sought an extension of time for the leave application.
32. The applicant did not apply for leave within 3 months as required under the law, he did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have considered the merits of the application. [22]
33. I agree with the decision of the TCAB. There is no merit in the applicant’s claim given the evidence. In my judgment, there is no error of law and procedure. The decisions of the Director and the TCAB are reasonable.
Conclusion
34. 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 25th 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 25 November 2020
Khan Shahbaz
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 25 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8391/17/9/63/IN1601
Director of Immigration
Putative Interested Party’s ref. no.:
Q/A T/C 1741/17 (formerly RBCZ/2001121/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Including trafficking in a dangerous drug, possession of a dangerous drug, theft and fighting in a public place.
[2] Paragraphs 9-16, the decision of the Director.
[3] Paragraphs 8.13-8.32, the decision of the Director.
[4] Paragraphs 20-30, the decision of the Director.
[5] Paragraphs 31-36, the decision of the Director.
[6] Paragraphs 37-42, the decision of the Director.
[7] Paragraphs 3-4, the decision of the Director.
[8] Paragraphs 59-62, the decision of the TCAB.
[9] Paragraph 64, the decision of the TCAB.
[10] Paragraph 65, the decision of the TCAB.
[11] Paragraph 67, the decision of the TCAB.
[12] Paragraphs 68-69, the decision of the TCAB.
[13] Paragraphs 70-73, the decision of the TCAB.
[14] Paragraphs 78-86, the decision of the TCAB.
[15] Paragraph 88, the decision of the TCAB.
[16] Paragraph 89, the decision of the TCAB.
[17] Paragraph 90, the decision of the TCAB.
[18] This was the date of the decision of the Director.
[19] The applicant was given notice to submit a written explanation for his failure to attend the scheduled hearing within 7 days on or before 12 March 2018. See paragraphs 59-62 of the decision of TCAB.
[20] Section 13 requires that notice be given not less than 28 days before the hearing. Section 15 allows the adjudicator to hear the appeal in the absence of the party if he failed to give an explanation within the time allowed in the notice which was 7 days in the present case.
[21] This was in accordance with s 37ZV of the Immigration Ordinance.
[22] [2020] HKCFA 22, para 37.
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