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HCAL 2955/2018
[2020] HKCFI 2963
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2955 OF 2018
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Joheb Ciraj Choudhary |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 initially filed a torture claim in 2013. He defaulted five screening interviews for various reasons. Subsequently, he withdrew the application in 6/5/2015. Later, on 20/8/2015, he sought to re-open the claim but was refused as he failed to provide further information. He was deported to India on 23/3/2016. [1]
2. On 20/1/2018, he sneaked into Hong Kong from Shenzhen. He surrendered to the Immigration Department on 25/1/2018 and applied for non-refoulement claim again. The Director agreed to process the claim on all applicable grounds on 26/1/2018. [2]
Background
3. The applicant was born on 12/1/1984 in Vasai, Thane District, Maharashtra, India. He was educated up to tertiary level. He was single. He was a Muslim. He had worked as a waiter and bartender.
4. About 2010, a friend ‘Shoaib’ introduced him to a fanatic Hindu political party called Shiv Sena. He joined their illegal activities including extortion of money. The group had influence over the police. In 2011, he cut all ties with Shiv Sena. His relationship with the party turned sour.
5. One day in 2011, two police constables went to his home intending to arrest him. He was not at home. His mother recognized that they were people from the Shiv Sena party with whom he used to hang out. Later, he confirmed with the police that he was not wanted for any case. A few days later, he received anonymous threatening calls. He talked to Shoaib about it. Shoaib said if he did not go along with Shiv Sena, he would be in trouble.[3]
6. One day in October 2011, he was assaulted by people of the Shiv Sena group outside a snooker club. The police did not register his report. He was to a government hospital for medical examination. Later, he chose to be treated in a private hospital. He was hospitalized for 3 days. He had wounds over his arms, thighs and body. He received stitches and other tests. He submitted 2 medical reports to the Director [4]. It took him about 6 days to recover. He went to Vasai Gaon Police Station afterwards but was told not to file a report.[5]
7. He stayed at a guesthouse for 10 days in Pune. He then went to Surat for about 15 days. He then went to Ahmedabad and stayed there for 2 months. Shoaib called him while he was in Ahmedabad. He was scared. He went to Mumbai and stayed with his sister at Navynagar for 4 months.[6] In the meantime, his mother instructed a lawyer and wrote complaint letters to the senior police officers at Vasai Police Station, however, it seemed there was no action. His mother even disclosed the story to a newspaper. It was useless. He then fled to Kolkata and hid at a hotel.[7]
8. When he was about to board a train to Kolkata from Mumbai, Shoaib and several men attacked him at the station. He managed to escape and boarded the train. He was not injured. He stayed at hotels in Kolkata for about two months with the assistance of a friend. Subsequently, he took a flight to Hong Kong on 10/9/2012.[8]
9. He was deported from Hong Kong to India in March 2016. Back in India, he paid $50,000 rupees to the people from Shiv Sena. He thought this might settle their dispute. However, they hit him and broke his front tooth and injured his face.[9] Shoaib witnessed the incident. Breaking one’s teeth was equivalent to ‘half murder’ in India. He reported to the police who did not register the case.[10]
10. The Shiv Sena people continued to demand money from him afterwards in 2016-2017. He had to hide himself at Kolkata and Mumbai. He was in great distress. He decided to leave India again. He took a flight to China on 19/5/2017 and stayed there until January 2018. He did not seek any assistance in China as he could not speak Mandarin and had no lawyer. He sneaked into Hong Kong in January 2018.
11. His family told him that Shiv Sena people continued to come and asked about him. They threatened to kill him if he returned to India.
12. He had no confidence in the local authorities and the police in India. Shiv Sena party had connections everywhere. They even associated with Bharatiya Janata Party (‘BJP’), the ruling party in India. [11]
The decision of the Director
13. The Director pointed out the following to conclude that the future risk of harm was low [12]:
(a) Since he returned to India in 2016, the Shiv Sena people demanded money from him. There was no intention to harm him. In fact, his mother had exposed the story to a newspaper around 2012, the grudge would have dissipated given such a long time lapse. [13]
(b) He did not mention the tooth injury in the NCF which was served on him on 26/1/2018 and completed on 7/3/2018. He only mentioned about the tooth injury during the screening interview. The Director doubted his explanation that he was not mentally prepared while compiling the NCF.[14]
(c) The injuries he sustained in the few incidents of assault did not amount to “a minimum level of severity”.[15] In fact, his family was not harmed.
(d) The applicant was able to hide away from the Shiv Sena people in 2011-2012 in various places such as Pune, Surat, Ahmedabad and Mumbai before he left for Hong Kong on 10/9/2012. Likewise, he was about to hide in Kolkata and Mumbai before leaving India on 19/5/2017. All these were indicative that the Shiv Sena people had limited ability to locate him.
(e) There was no evidence that the incidents of attack or extortion of money were endorsed by the leaders of the Shiv Sena Party despite Shoaib was present as he claimed.
14. There were reports of widespread corruption and police incompetence in various COI. The Director also found that the law ensured public and fair trial. There was a functioning judiciary and a legal aid system. The Indian government would not tolerate malpractice of individual officers. There were positive reforms which improve police effectiveness. There were alternative channels for complaint, e.g. National Human Right Commission. A person could complain to the District Commander or a Magistrate if the police refuse to register a report. The Director concluded that the Indian government could provide reasonable protection albeit the system was not flawless.
15. The Director found that there was no evidence that Shiv Sena people was so resourceful that they could locate the applicant throughout India. India was a large country and a huge population. There were big cities such as New Delhi and Mumbai. The applicant was safe at various places before he left. It would not be unreasonably harsh for him to relocate. [16]
16. For the claim under BOR 3, his injuries, physical or mental, did not amount to ‘a minimum level of severity’. The circumstances did not support a real and personal risk of ill-treatment if he returned to India. This claim failed.[17]
17. Similarly, the Director found no evidence to support arbitrary deprivation of life. Nor was any other subsections of BOR 2 engaged.
18. For persecution risk, the ill-treatment of the applicant was not within the ambit of ‘persecution’ according to the Refugee Convention. The whole incident was an extortion of money. There was no well-founded fear. This basis of claim failed.[18]
19. For torture risk, the applicant’s injuries did not amount to sever pain or suffering within the definition of ‘torture’ under s.37U (1) of the Immigration Ordinance. There was no evidence that the attack on the applicant was formulated by the Shiv Sena Party. There was reasonable State protection. No evidence that the assault arose from official involvement, acquiescence or instigation. The applicant was never targeted by the Indian government. He could leave India without any problem. [19]
20. The Director rejected all the above claims on 26/3/2018.
The decision of TCAB
21. The adjudicator held a hearing on 21/6/2018. The applicant sought to adjourn the hearing on the ground that he needed time to arrange all relevant documents to be sent to Hong Kong from India. He was detained in CIC and unable to do so. The adjudicator found that the applicant should have located the necessary documents before he left India in 2016 and 2017. She rejected this application and continued with the hearing.[20]
22. She rejected the appeal on 20/7/2018. She pointed out the following reasons which affect the credibility of the applicant. She did not accept that the applicant’s account of events in 2011 and 2016 in India:
(a) During the hearing, the applicant said he had never participated in the illegal activities of Shiv Sena in 2010. In fact, he had never joined any political party. He had not jointed the activities as he claimed in the TCF in 2013. He did not make good money as he claimed in the TCF of 2013. According to the research of the adjudicator, there was no election in the area as the applicant claimed. [21]
(b) The applicant mentioned in 2013 that his mother had wrote complaint letters to senior officers and exposed his story to a newspaper. He produced a piece of newspaper cutting in which threats from Shoaib or Kalpish were not mentioned. Nothing of that sort was mentioned in the complaint letters written by his mother. [22]
(c) The applicant was a Muslim while Shiv Sena was fighting for the interest of Hindu. The applicant explained that Shiv Sena also wanted support from Muslims. The adjudicator was doubtful about this. [23]
(d) In his 2013 TCF, the applicant said 2 police officers came to his home to arrest him. However, in the oral hearing, the applicant said the police just asked his mother where he was. The identity of the officers was unknown. He thought they were actually from Shiv Sena as Shoaib was connected with the police. [24]
(e) He admitted exaggerating the episode outside the snooker club in 2011 in his 2013 TCF. He was not unconscious and he was not seriously injured. He mentioned a person Adil during the oral hearing. Adil was a friend of Shoaib. The presence of Adil during the snooker club episode made him suspect that the assault was connected with Shiv Sena. However, Adil was not mentioned in the 2013 TCF or the screening interview. The two medical reports did not reveal that he was assaulted by Shiv Sena people. [25]
(f) He was not sure whether he had reported to Vasai Gaon Police Station after the snooker club episode. This was inconsistent with his 2013 TCF in which he said the police there asked him not to file a case. [26]
(g) He said it was pure luck that he could escape the chase by 3-4 men at the train station to Kolkata. Might be it was crowded and the police was there.[27]
(h) In the complaint letters by his mother, there was no mention about the snooker club episode and the refusal of the Vasai Police Officers to register the case. The applicant explained that his mother only mentioned the matter she was involved. [28]
(i) In his 2018 NCF, he said he suffered no physical injury after he returned to India in 2016. However, in the screening interview, he mentioned the tooth injury. [29]
23. The adjudicator had considered various COI. She agreed with the Director that India had measures at different levels to address the problems of the police. She did not accept that the applicant would not receive assistance from the police. [30]
24. The applicant did not fall into any of the categories of persecution under the Convention. The dispute concerned no political issues. There was no State involvement or acquiescence. Persecution risk failed.[31]
25. The injuries claimed by the applicant did not amount to a minimum level of severity. As a whole, there was no real and personal risk of ill-treatment if returned to India. BOR 3 claim failed.
26. There was no evidence that the applicant would face the risk arbitrary deprivation of life. The other sub-articles of BOR 2 were not engaged. [32]
27. The applicant did not suffer severe pain or suffering as defined under s. 37U of the Immigration Ordinance. The threat to kill or injured was unlikely to materialized. There was no evidence that Shiv Sena was State agents. There was no evidence of State or public official involvement, acquiescence or instigation. In fact, the adjudicator disbelieved the applicant and found the police did not receive any report. This ground failed.[33]
28. The adjudicator pointed out that Delhi and Mumbai were reasonable alternatives for relocation. She did not accept that the Shiv Sena people could locate him anywhere in India. Their influence was localized in Maharashtra.
Judicial review
29. The applicant applied for leave to apply for judicial review on 24/12/2018. In his supporting affirmation, he disagreed with the TCAB decision. The applicant stressed that his life was in danger. He had not pointed out any specific error in the decisions of the TCAB and the Director.
30. In judicial review, this court decides whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. Finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.
31. In my judgment, there is no error of law or procedure. The decisions are reasonable.
32. The applicant was out of time in filing the Form 86 by about two months.[34] The applicant should have applied for extension of time in the Form 86. He did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have to consider the length of the delay, the reasons for the delay, the merits of the application and the prejudice to the putative respondent if extension was granted. [35]
Conclusion
33. The application is not reasonably arguable. There is no reasonable prospect of success. There is no explanation for the delay. There is no merit in the applicant’s claim. In the circumstances, there is no good reason for extending the time for the leave application.
34. I refuse leave for judicial review.
Dated 4th day of December 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 4 December 2020
Joheb Ciraj Choudhary
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 4 December 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11185/18/4/195/IN2173
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 548/18 (Formerly RBCZ/121/13 & RBCZ/10078/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Screening interviews fixed on 7/10/2013, 25/10/2013, 10/12/2013, 31/3/2015 and 11/5/2015. Paragraphs 7-13, the decision of the Director.
[2] Paragraphs 14, 22-24, the decision of the Director.
[3] Paragraphs 16.10-16.14, the decision of the Director.
[4] According to the reports, he had abrasions, lacerations and contusion on various parts of his body.
[5] Paragraphs 16.15-16.23, the decision of the Director.
[6] Paragraphs 16.24-16.27, the decision of the Director.
[7] Paragraphs 16.28-16. 32, the decision of the Director.
[8] Paragraphs 16.33-16. 37, the decision of the Director.
[9] Paragraph 16.42, the decision of the Director. He did not mention the teeth injury in his NCF. He explained that he was not mentally prepared at that time.
[10] Paragraphs 16.38-16. 39, the decision of the Director.
[11] Paragraphs 16.51-16. 54, the decision of the Director.
[12] Paragraphs 27-34, the decision of the Director.
[13] Paragraph 28, the decision of the Director.
[14] Paragraph 29, the decision of the Director.
[15] Paragraph 30, the decision of the Director.
[16] Paragraphs 33-34, the decision of the Director.
[17] Paragraphs 35-37, the decision of the Director.
[18] Paragraphs 41-45, the decision of the Director.
[19] Paragraphs 23-26, the decision of the Director.
[20] Paragraphs 10-20, the decision of the TCAB.
[21] Paragraphs 24-27, the decision of the TCAB.
[22] Paragraph 28 & 46, the decision of the TCAB.
[23] Paragraphs 29-30, the decision of the TCAB.
[24] Paragraphs 31-34, the decision of the TCAB.
[25] Paragraphs 35-39, the decision of the TCAB.
[26] Paragraphs 40-41, the decision of the TCAB.
[27] Paragraphs 43-44, the decision of the TCAB.
[28] Paragraphs 46-48, the decision of the TCAB.
[29] Paragraphs 51-54, the decision of the TCAB.
[30] Paragraphs 59-60, the decision of the TCAB.
[31] Paragraphs 85-87, the decision of the TCAB.
[32] Paragraphs 83-84, the decision of the TCAB.
[33] Paragraphs 77-82, the decision of the TCAB.
[34] The TCAB rejected his appeal on 20/7/2018, the deadline for filing a Form 86 should be 20/10/2018.
[35] [2020] HKCFA 22, para. 37.
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