MOHAMMED MOINUDDIN v. DIRECTOR OF IMMIGRATION

HCAL 210/2018

[2020] HKCFI 1001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 210 of 2018

     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 is a 35-year-old national of India who last arrived in Hong Kong on 21 March 2008 with permission to remain as a visitor up to 11 April 2008 when he did not depart and instead overstayed and was arrested by police on 16 April 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kidderpore, Kolkata, India.  After leaving school he started an embroidery business with a partner in Kolkata by borrowing a loan of 2.5 million Indian Rupees from a local money-lender at a monthly interest payment of 100,000 Rupees.

3.  However, from 2000 to 2007 the Applicant was never able to make any monthly interest payment to his creditor, and in late 2007 his partner embezzled all the money and goods of the business and disappeared. As a result the Applicant fell into serious financial difficulty, and in early 2008 the money-lender came with several men to his home to demand repayment of his loan, and threatened to kill him if he failed to do so soon. After they left the Applicant reported their threats to the police but they did not take his case seriously.

4.  For the following weeks the money-lender kept coming to the Applicant’s home with his men, and when the Applicant was not at home, they threatened his father that they would kill the Applicant if the outstanding debt was not settled soon.

5.  Fearing for his life the Applicant therefore departed India on 6 March 2008 for Hong Kong where he eventually overstayed and raised his torture claim by a Torture Claim Form (“TCF”) which was later taken as a non-refoulement claim under the Unified Screening Mechanism, for which he completed a Supplementary Claim Form (“SCF”) on 20 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  Whilst released on recognizance pending determination of his claim, the Applicant was arrested by police on 8 October 2008 for taking up employment without permission,and was subsequently convicted and sentenced to prison for six weeks.

7.  By a Notice of Decision dated 29 May 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), 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”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor upon his return to India as low due to the absence of past ill-treatment from the creditor other than some verbal threats made only to press him for repayment of his loan, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread acrossa vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of India away from his home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for his creditor to locate him.

9.  By a Notice of Further Decision dated 7 June 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submitadditional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of whichwas filed on 12June 2015, but for which he failed to appear in the two scheduled hearings on 12 October and 6 December 2016 before the Board without explanation.  On 25 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board in the absence of the Applicant’s oral evidence but on the basis of the materials available including his TCF, SCF and records of interview provided by the Director in the hearing bundle found inconsistencies and discrepancies in the Applicant’s account that it was not satisfied that he had provided truthful or reliable information about his alleged loan and hence was doubtful about his alleged threats from the creditor, but that even if it were to accept such information provided in his TCF and SCF as true, it would still find no justification to afford him with non-refoulement protection due to the availability of state and police protection and the fact that the risk of harm from his creditor was a localized one and that it would not be unduly harsh for the Applicant to relocate to other part of India away from his home district in some large cities where he could safely live and work without any fear of being located by his creditor.

12.  On 12 February 2018 the Applicant filed his Form 86 in which he stated was for judicial review of the decision of the Director of 5 February 2018, but clearly neither of the two decisions of the Director was made on that date and instead much earlier on 29 May 2015 and 7 June 2017 respectively, and which are in any event not susceptible to judicial review once the Applicant had pursued his appeal to the Board: see Re Moshsin Ali [2018] HKCA 549.

13.  As such I am prepared to treat his application as one for judicial review of the Board’s decision of 25January 2018, but no ground for seeking relief was given in his Form, or in his supportive affirmation of the same date in which he merely stated that he wanted to apply for judicial review because his life is in danger in India.  In the absence of any legal error or procedural unfairness in the Board’s decision being shown by the Applicant,I am unable to see any prospect of success in his intended challenge.

14.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the analysis and reasons set out in paragraphs 15 – 23 of its decision, and in the absence of any oral evidence to substantiate the claim due to the Applicant’s failure to attend the scheduled oral hearings without any explanation, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17.  In the premises and having considered the Board’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave 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