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HCAL 2979/2018
[2021] HKCFI 1114
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2979 of 2018
BETWEEN
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Ahmed Mehraj |
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:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant first came to Hong Kong on 23/9/2011. He had entered and left Hong Kong several times between 2011-2013. He was last allowed to stay in Hong Kong until 7/8/2013. He overstayed and surrendered to the Immigration on 4/1/2016. He filed the non-refoulement claim on 28/10/2016.
Background [1]
2. The applicant was born on 11/7/1986 in Kabitirtha Sarani, Kolkata, India. He had education for 8 years. He was single. His family was in India. He owned a business from 2009 to 2013.
3. Around December 2010, he borrowed 1.7 million rupees[2] from a money lender (1st loan) to expand his business in selling electronic goods and garments. He had signed a loan agreement. He had to repay the principal and interest [3] on or before December 2013. There was no collateral. There was a guarantor (Manu) who had passed away. The money lender was a member of the Legislative Assembly of TMC.[4] The money lender had many businesses.
4. In January 2012, the right hand man of the money lender (K) came to his home with several others. They took him to an unknown place and beat him up with hockey sticks. They used knives also. They threatened to kill him if he could not repay.
5. There were 4 similar attacks from K and the gang between April 2012 to April 2013. He had bruises and abrasions. He was treated by the village doctor. He recovered in a few days.
6. He reported to the police after each assault but the police informed K instead. From time to time, K also threatened him on the phone.
7. Eventually, he repaid 900,000 rupees. However, he was unable to repay any more as someone stole his goods.
8. In January 2013, he borrowed a 2nd loan from the money lender on the same terms. He signed another loan agreement. He had to repay a total of 40,000 rupees of interest for both loans. From 2013 onwards, K and the money lender had put pressure on him to repay the two loans as soon as possible.
9. Due to the harassment from K and the gang, his business closed down eventually. He decided to leave India. He stayed in Ranchi for 6 days before leaving. He received threatening calls from K during those days. He finally took a flight to Hong Kong in mid-2013. He stayed with friends in Hong Kong until he learned about the non-refoulement scheme. He then surrendered to the Immigration Department.
10. He kept contact with his brother who repaid the loan for him in India. He did not know the details. However, the money lender still asked about him. His family was safe in India.
11. The Indian police would not assist him. They were on the side of TMC and the wealthy. He did not think the complaint channels would be useful.
12. He had no relatives or friends who could assist him in relocation. K and his gang would be able to locate him.
The Decision of the Director
13. The Director noted the following aspects of his evidence and found that the risk of harm was unlikely to materialize:[5]
(a) K and his gang attacked him several times at home. They also verbally threatened him. He could recover in a few days each time. The injuries did not amount to ‘a minimum level of severity’.
(b) There was no evidence that K and his gang had the intention to seriously harm or even kill him. They had plenty of chances had they wanted to do so.
(c) His brother was repaying the loan for him in India. There seemed no point for the money lender to incur further resources to locate him all over India. The future risk of harm was low.
(d) Despite the five incidents of assault in 2012 and 2013, he returned to India several times during that period after visiting Hong Kong. This was inconsistent with a person under genuine fear of harm in India.
(e) There was no evidence that the TMC party had targeted him. It was inconceivable that the party would be involved in such a dispute which was a personal loan.
(f) He could depart India without any difficulties. There was no evidence that any government official was involved. Nor was there any consent, instigation or acquiescence by any public official.
(g) The Director had considered some relevant COI. Police efficiency varied at different states. There were reports that the police refused to register crime reports in order to cut caseloads. However, there were reforms with positive results. There were complaint channels to the superintendent or a Magistrate if the police failed to take action. The National Human Right Commission was tasked to investigate violations in human rights. There was a Police Accountability Commissions which would hold hearings on police misconduct and abuses. The Director was satisfied that there was reasonable State protection. There was no evidence that the government was unable or unwilling to enforce the law.[6]
14. The law allowed internal relocation. The Director found that New Delhi and Mumbai were suitable alternatives for relocation. India was a large and populated country. It was difficult to locate the applicant in India. It was not unduly harsh for the applicant to relocate.[7]
15. There was no real and personal risk of ill-treatment or arbitrary deprivation of life. The threat from the money lender arose from a loan dispute. It was not due to any Convention reason. There was no severe pain and suffering as defined under s.37U of the Immigration Ordinance.
16. The Director rejected his non-refoulement claim on 31/1/2018.
The Decision of TCAB
17. The adjudicator held an oral hearing on 22/8/2018. The applicant adopted the content of the NCF and the record of interview before the Director. The adjudicator found that the applicant was not truthful about the details of the loan, the threats and attack from K. The adjudicator rejected the appeal on 21/12/2018. The main reasons were as the following: [8]
(a) During the oral hearing, the adjudicator found that the applicant was evasive in answering questions. His account of events was vague and lacked details. There were inconsistencies with his NCF.
(b) The 1st loan had to repay in December 2013. However, he was assaulted and beaten up long before the deadline. This was not credible.
(c) He said during the TCAB hearing that K was his guarantor. However, in his NCF, it was a man named Manu acting as guarantor.
(d) In the TCAB hearing, he said the 1st loan was 1.6 million rupees including 1.2 million rupees as principal and 400,000 rupees as interest. However, in his NCF, he said it was 1.7 million as principal and 240,000 rupees as interest.
(e) He was also uncertain whether it was 2 or 3 years for repaying the loan.
(f) He explained that the money lender could ask for repayment any time during the loan period. The adjudicator found this strange. It was an attempt to justify the assaults which were long before the deadline.
(g) Despite the several incidents of assault from 2012-2013, the applicant could borrow the 2nd loan. His explanation that he maintained good relationship with the money lender was incredible. In fact, he could not give details in relation to the assaults.
(h) During the TCAB hearing, he said he reported once to the police however in his NCF he said he reported after each attack. It was also unreasonable that he reported the incident in which he suffered no injury.
(i) He had many friends in Hong Kong. He did not enquire about the non-refoulement protection scheme. It was inexplicable that he did not apply for protection shortly after arriving at Hong Kong in 2013. He further delayed for 9 months after surrendering himself to the Immigration Department. He only filed a claim in October 2016. All these were damaging to his credibility.
(j) He said during the TCAB hearing that he would return to India in 2019 as he had some funds in his bank account. This was never mentioned earlier.
Judicial Review
18. The applicant applied for leave to apply for judicial review on 27 December 2018. In his supporting affirmation, he did not point out any error in the decision of the TCAB.
19. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
20. The applicant had not made specific complaint of any error in the decision of the TCAB. In my view, there were material inconsistencies in his evidence. The adjudicator was right to reject the factual basis of his claim.
21. In my judgment, there is no error of law or procedure. The decision is reasonable.
Conclusion
22. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 27th day of April 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 27 April 2021
Ahmed Mehraj
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
27 April 2021
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10326/18/2/210/IN1961
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3534/17
(formerly RBCZ 13491/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 31/1/2018, §§8.1-8.30.
[2] About HK$ 180,000.
[3] Total interest was 240,000 rupees.
[4] Trinamool Congress Party.
[5] Decision of the Director dated 31/1/2018, §§14-21.
[6] Decision of the Director dated 31/1/2018, §§22—26.
[7] Decision of the Director dated 31/1/2018, §27.
[8] Decision of the TCAB dated 21/12/2018, §§28—38.
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