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HCAL 3019/2018
[2021] HKCFI 2864
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3019 of 2018
BETWEEN
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Sajid Mohammad |
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. The applicant arrived at Hong Kong on 4/6/2014. He was allowed to stay until 11/6/2014.[1] He was arrested by the police on 30/7/2014 for overstaying. He filed the non-refoulement claim in this case on 2/8/2014.
Background
2. The applicant was born on 30/11/1981 in Kolkata, India. He received education for about 3 years. He was single. He was a Muslim. He ran a wholesale garment business from 2006-2014. His family was in India. He and his family had not been arrested, charged or imprisoned.
3. About mid-2012, he had a love affair with Puja (“P”) who was a Hindu. Later in November, her brother discovered the relationship and strongly objected to it. Her brother warned him to stop the relationship because of difference in religion. He pretended to comply with the demand.
4. About a month later, while he was at the Marine Club drinking with friends, P’s brother and some associates approached him. He refused to talk. A scuffle ensued. While he and his friend tried to escape, a motorcycle knocked him down. He was hit by someone at his back. The gang left when a police officer intervened. He sustained wound and bruises all over his body. He was hospitalised for 3 days. He was given ointment and medication. He met one of the assailants in the hospital. That man warned him not to report. It took him a month to recover.
5. A few months later, P’s brother and a gang approached him at a football pitch. Her brother told him to leave Kolkata or else they would kill him. He was so afraid that he stop meeting P. He did not answer her calls. He did not report to the police.
6. In order to stay away from P and her brother, he fled to New Delhi for 2 months. He then returned to Kolkata and stayed with his cousin at Malikpur for another 4 months.
7. In January 2014, he accidentally discovered that P’s brother was leading a procession organized by the TMC [2]. He believed that her brother must be a significant member in the TMC. He was even more worried about the death threat. He decided to leave India for Hong Kong.
8. His cousin sponsored the cost for him to leave India. He arrived at Hong Kong on 4/6/2014.
9. He feared that P’s brother would kill him. He did not think the police would help as they were influenced by the TMC. His family was safe in India. P’s brother would be able to locate him given the TMC network. It would be difficult for him to relocate as he was not educated. He was not aware of any authorities which tackle corruption in India.
The Decision of the Director
10. The Director found that the risk of harm was low: [3]
(a) The applicant and P’s brother had several encounters. There were only verbal threats in the first two occasions. In the Marine Club incident, his group fought with P’s brother and his associates. He was injured but it was not severe. Thereafter, there was no further assault despite the death threat from P’s brother.
(b) Despite the assertion that P’s brother was influential and connected with the TMC, her brother and his associates had not inflicted serious harm on him during most of the encounters.
(c) He chose not to follow up his case with the police. There was no evidence that any government official was involved. In fact, he could depart India without any difficulties. He was not targeted.
(d) He claimed to the Immigration Officer that he was here for business purposes. He delayed for 1½ months until after his arrest that he filed the non-refoulement claim. This was inconsistent with the assertion of fear.
(e) The Director had considered relevant COI. There were problems of corruption, abuse of power and ineffective investigation techniques. Nevertheless, the government had measures to improve efficiency in the police. An aggrieved party might take his case to the Superintendent or a Magistrate. The CBI [4] operated a hotline and a web portal for corruption complaints. NGO might assist in public interest petition against officials for corruption and bias. The NHRC [5] was responsible for the investigation of abuse of power by public officials. There were news reports about actions taken against police officers. There was no evidence that the government was unable or unwilling to discharge its duties. The Director was satisfied that there was reasonable State protection.
(f) The law in India allowed internal relocation. India was large. Its population was about 1,250 million. The Director found that Delhi was a viable option for relocation. It was not unduly harsh for the applicant to relocate given his experience. There was no evidence that the TMC had agreed to help P’s brother in this personal matter. It was unlikely that the TMC would use their resources to locate the applicant.
11. The Director rejected his claims on all grounds on 4/8/2016 [6] and 5/6/2017.[7]
The Decision of TCAB
12. The adjudicator held an oral hearing on 21/7/2017. He found that nothing in the evidence of the applicant could be relied on. There was no risk of harm if the applicant returned to India. The adjudicator rejected the appeal on 31/7/2017. The main reasons were:
(a) The applicant told the adjudicator a different story because his initial story was untrue. He borrowed a loan to come to Hong Kong in 2014. At the airport, he handed his passport to the Immigration Officer. He was told to wait. He took the chance to run away from the airport. He reported to the police the next day but the police told him to contact the Immigration Department. Eventually, he went to another police station and was detained for 25 days. He was finally given an immigration paper and released.
(b) He told the TCAB that he could not repay the loan. There were general problems between Hindus and Muslims in India.
(c) He could only tell the approximate amount of the loan. There was no due date. He had borrowed the loan about 4 years ago. The creditor had once pursued the debt. He was once assaulted and hospitalised for 1 day. He agreed it was a private matter. His family was safe in Kolkata.
13. The adjudicator rejected the new basis of his claim. His passport was with the Director. His story about fleeing from the airport was implausible. The adjudicator opined that his evidence during the TCAB hearing was fabricated out of desperation. Despite the conflict between Hindus and Muslims, there was no evidence that the applicant was personally at risk.[8]
14. The adjudicator concluded that there was no real risk of harm. He dismissed his appeal on all grounds on 31/7/2017.
Judicial Review
15. The applicant filed the leave application on 31/12/2018. He was out of time for about 14 months. In his affirmation, he pointed out that his life was still in danger. He had not explained the delay nor did he asked for extension of time to file the leave application.
Out of Time Leave Application
16. As mentioned above, the leave application was out of time for about 14 months. He should have first sought an extension of time.
17. 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, the merits of the leave application, prejudice to the respondent and good administration and questions of general importance. [9]
18. 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.
19. The adjudicator had analysed the evidence of the applicant in detail. His version before the TCAB was an obvious fabrication. I agree with the adjudicator that the applicant was not a credible witness. The adjudicator was right to reject his evidence.
20. In my judgment, there is no error of law or procedure. The TCAB decision is reasonable. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success.
Conclusion
21. In the absence of any explanation about the delay, I conclude that there is no good reason to extend the time for the leave application. I refuse leave for judicial review.
Dated the 28th day of September 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 28 September 2021
Sajid Mohammad
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
28 September 2021
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4405/16/8/124/IN994
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 386/16 &
RBCZ 9001736/17
(formerly RBCZ 2534/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] He claimed to the Immigration Officer at the airport that he was here to buy goods for his mobile phone and garment business. He was allowed to stay for 7 days. See Decision of the Director dated 4/8/2016, §7.
[2] All India Trinamool Congress.
[3] Decision of the Director dated 4/8/2016, §§13-21.
[4] Central Bureau of Investigation.
[5] National Human Rights Commission.
[6] On BOR 3, persecution and torture risk.
[7] The Director invited further information for the BOR 2 claim. The applicant did not respond.
[8] Decision of the TCAB dated 31/7/2017, §§20—43.
[9] H v Director of Immigration [2020] HKCFA 22, para 37 and AW v Director of Immigration CACV 63/2015, para 27.
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