ALI ZULFIKAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1705/2019

[2024] HKCFI 1690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1705 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 20 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing.  Pursuant to Order 53, Rule 3(3) of the Rules of the High Court, he appeared before the Court on 9 May 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, Rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 58, is an Indian.  He entered Hong Kong as a visitor on 16 January 2015 and was arrested by the police on 3 March 2015 after he was found working in a guesthouse.  On 23 March 2015, he was convicted of the offence for breach of condition of stay by taking unapproved employment and was sentenced to imprisonment for two months.  The applicant made a non-refoulement claim on 22 April 2015.  The claim was made on the basis that, if refouled, he would be seriously harmed or even killed by his creditors (“the creditors”) because he failed to repay the loan to them.

5.  According to the applicant, he was a supplier trading dental products. He used to borrow money from his customers, after which he would come to Hong Kong and/or Mainland China to purchase the required products and bring them back to India for sale.  All along, he was not required to pay duty at the customs.  In or about August 2012, he borrowed money from the creditors and then travelled to Hong Kong as usual to purchase the goods required by them. When he returned to India, the customs officers at the airport suddenly requested him to pay duty for the goods bought.  The applicant was unable to pay and the goods were therefore forfeited.

6.  The applicant explained the situation to the creditors and promised to repay the money they lent him.  In order to keep his business running, he borrowed further money from them so that he could travel to Hong Kong again to purchase the goods.  In about November 2012, the applicant asked his friend to come to Hong Kong to purchase the goods instead because he was afraid to be recognised by the customs back in India.  Yet, his friend was also intercepted by the customs when he returned and was requested to pay duty.  As the applicant’s friend failed to pay, the purchased goods were again forfeited.

7.  As a result of the confiscation, the applicant owed large sum of money to the creditors.  Thereafter, they started coming separately to his home demanding repayment of the loans or the goods every 1-2 months until the end of 2014.  During this period, with a view to earning more money to repay the loans, the applicant travelled to Hong Kong around 15-20 times to purchase garments, which he then brought back to India for resale.  However, the profit he made was just barely sufficient to support his family, so that he was unable to make repayment to the creditors.

8.  By the end of December 2014, the creditors threatened to kill the applicant if he still failed to pay or give them the goods.  He was very worried about his safety and decided to come to Hong Kong on 16 January 2015 after discussion with his family.

9.  The applicant maintained contact with his wife weekly.  She told him that the creditors continued coming to his house every 1-2 months, threatening to kill him if he still failed to repay his loan.

10.  The applicant considered internal relocation not viable because the creditors were influential businessmen with underlings all over the country, so that he might be found through their connections.  He was also concerned that they would threaten his family members in order to locate him.  Meanwhile, the applicant had never sought assistance from the police because he believed that they would not protect him and would simply ask him to repay the creditors.

11.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 December 2017 (“the Director’s Decision”).

The Director’s Decision

12.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the creditors indicated a small future risk of harm upon his return to India [13]; (ii) state protection would be available to him [14]-[18]; (iii) internal relocation would be viable [19] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20]-[26], Persecution risk [27]-[32] or Torture risk [33]-[35].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  On 13 November 2018, the Board conducted an oral hearing.

15.  During the hearing, the applicant claimed that besides the oral threats, he had also been attacked by one of the creditors.  There were some pushing during the process, but he suffered no injuries.  Meanwhile, his family did not suffer any harm from the creditors [50].

16.  Having considered the applicant’s evidence, the Board was of the view that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [13]-[25], [52]-[53].  Furthermore, internal relocation was also available taking into account the country of origin information [54]-[58].

17.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

18.  The applicant has filed Form 86 on 20 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In his affirmation in support of his application, the applicant said that his life would be in danger if he returned to India.

DISCUSSION

20.  Before me, the applicant said that he wanted to withdraw his application, as he will be able to solve his problems in his country.  He further agreed that the Court will dismiss his application and he will not be able to take this matter any further.

21.  There is no evidence to show that he made the application for withdrawal other than of his own free volition.

CONCLUSION

22.  For the reasons above, I dismiss his application.

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