Case Detail

CHOPRA AMIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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[2021] HKCFI 1778-EN-2021-06-29

RE CHOPRA AMIT

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HCAL 1794/2018

[2021] HKCFI 1778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1794 OF 2018

________________________

RE:

CHOPRA AMIT

Applicant

________________________

Before:

Deputy High Court Judge P. LI in Chambers

Date of Decision:

29 June 2021

________________________

D E C I S I O N

________________________

1. The applicant is from India. He was born on 20/5/1981. He came to Hong Kong on 30/11/2004 as a visitor. He did not turn up for departure to India on 2/9/2005 pursuant to a removal order. He overstayed until he was arrested on 12/12/2007 for dealing with illicit fuel. He lodged a torture claim on 17/12/2007. The Director rejected his torture claim on 20/8/2013.

2. While on recognizance, he was arrested on 11/9/2012 for illegal employment. He was arrested again on 4/11/2014 for using another’s identity card.[1]

3. On 17/9/2013, he lodged the non-refoulement claim in this case. He claimed that he was unable to repay the debt owed to a money lender. His life would be in danger if he returned to India.

4. The Director rejected his non-refoulement claim on 4/3/2016 and 29/12/2017.[2] The applicant appealed to the TCAB. The appeal was dismissed on 17/8/2018.

5. On 31/8/2018, the applicant applied for leave for judicial review of the decisions of the TCAB and the Director. He complained that he had no legal assistance. He did not understand English or Chinese. He did not understand the correspondence and the procedures of assessment under the USM.

6. Deputy Judge Lung fixed a hearing on 21/11/2019. The applicant did not attend. The Judge considered the leave application on paper.

7. Deputy Judge Lung stressed that the applicant was not entitled to free legal representation at every stage of the proceedings. The TCAB and the Director were entitled to determine the merits of the claim according to evidence. It was not for the Court of First Instance to usurp that role. Deputy Judge Lung pointed out that the TCAB had considered the applicant’s evidence. The Judge concluded that it was not reasonably arguable. He refused leave for judicial review on 30/6/2020.

8. The applicant filed a summons on 6/11/2020 for extension of time to appeal against the decision of Deputy Judge Lung. He was about 3½ months out of time.

9. In his affirmation in support of the application for extension of time, the applicant indicated that he did not receive the decision of Deputy Judge Lung. He only knew about the decision when he reported to the Immigration Department.

10. In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[3]

11. The applicant was out of time for about 3½ months. It was substantial delay. He claimed that he did not receive the decision of Deputy Judge Lung. According to the court record, that decision had already been sent to the applicant on 30/6/2020. It was sent to an address at Man Wah Building, Man Wai Street, Kowloon. This was the most updated address filed by the applicant around September 2019. There was no return of mail.

12. The notice of hearing before Deputy Judge Lung was sent to the same address on 23/10/2019 by ordinary and registered mail. The notice sent through ordinary mail was returned to the High Court on 3/2/2020. It was marked ‘no such person’. The notice sent through registered mail was returned to sender marked ‘unclaimed’.

13. In the summons of the present application, the applicant used another address at Man Fai Building, Man Ying Street. However, he had not updated this address with the court.

14. The Court of Appeal has reiterated that it is the duty of a litigant to provide the Court with an up-dated address. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant.[4] In my view, the applicant must bear the consequence of failing to update his address with this court.

15. As to the merits of the claim. The factual basis is as follows. The applicant was persuaded by an agent to borrow a loan of 300,000 Indian Rupees from a money lender. It was the fee for the agent to take him abroad for work. After taking him to Hong Kong via Thailand and China, the agent disappeared. He was unable to repay the loan. The money lender harassed his family and damaged their properties in India. His mother reported to the police who took no action. He could not relocate in India. The money lender would be able to locate him anywhere in India.

16. The Director found that the dispute was a private matter. There was no physical violence on the applicant. The ill-treatment on his family members did not reach ‘a minimum level of severity’. The COI indicated reasonable State protection. There were viable options for relocation. The Director rejected his claim.

17. The applicant attended the TCAB hearing. The adjudicator found the applicant unreliable based on the following:[5]

a.  The story of the applicant was too vague to attach evidential weight. He did not know the name of the money lender. He was unable to remember the date of making the loan. He was uncertain about the time of threats and harassment.
b.  He asserted that the loan agreement was in India however he was unable to produce a copy.
c.  He heard about the damage of family properties about 1 month after he arrived at Hong Kong which was about 14/12/2004. He also said his mother told him about the incident on 1/12/2004 or 2/12/2004. He could not explain the inconsistency.
d.  He only raised a torture claim in 2007 after his application for refugee status was rejected in 2006. In fact, he had already learned about the threats from the money lender in 2005.
e.  He absconded from the Immigration Department for over two years.[6] He repeatedly engaged in illegal work while on recognizance.[7] These undermined his credibility.

18. The adjudicator also found that there were reasonable relocation options to cities such as Delhi, Kolkata and Mumbai. It would be very difficult for the money lender to locate him.

19. Given the above, I agree with the decisions of the TCAB and Deputy Judge Lung. There is no merit in the intended judicial review. In the circumstances, I dismiss his application for extension of time to appeal.

	(P. Li)
	Deputy High Court Judge

The applicant was unrepresented.

[1] He was imprisoned for 8 months and 18 months respectively.

[2] The former was on BOR 3 and persecution risk. The latter was for BOR 2.

[3] Jagg Singh [2020] HKCA 844, §10.

[4] Nupur Mst v Director of Immigration, CAMP 54/2018, §31.

[5] The decision of TCAB dated 17/8/2018, §§5—6.

[6] He failed to report to the Immigration Department on 2/9/2005. He was only arrested on 12/12/2007.

[7] See paragraphs 1 & 2 above.

HCAL 1794/2018

[2020] HKCFI 1373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1794 of 2018

BETWEEN

	Chopra Amit	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	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;

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

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2. The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing on 21 November 2019. I shall proceed to consider his application on paper.

3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Board and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4. The applicant is an Indian national. He came to Hong Kong on 30 November 2004 as a visitor and was allowed to stay until 7 December 2004. He overstayed. He applied for extension of stay but was rejected. During his period on recognizance, he committed a number of offences and was imprisoned. He lodged a non-refoulement claim on 17 September 2013.

5. He claimed that if refouled, he would be harmed or even killed by the boss and an employee called Sonu of a money lending company named Chawla Financer because of his default in the repayment of his loan from the money-lender.

6. He was persuaded by an agent to borrow 300,000 Indian Rupees from the money-lender for the fee of the agent to take him overseas to get a job for better pay. The agent received the money and took him to China and Hong Kong. The agent then disappeared. He was unable to repay the loan. Sonu went to his mother in India to look for him. His mother advised him not to return to India. Sonu had attempted many times to disturb his family in India for his whereabouts. His mother reported this matter to police. The police did not take action. He remained in Hong Kong as he feared that he might be harmed or killed if he returned to India. He made a refugee application with the United Nations High Commissioner for Refugees in Hong Kong in 2005 or 2006. His application was refused.

The Director’s Decisions

7. As he had made a torture claim protection and was refused, the Director considered his application in relation to the following risks:

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

8. By Notice of Decision dated 4 March 2016 and by Notice of Further Decision dated 29 December 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm if he returned was low [17]; that state protection was available to him [20] and internal relocation was an option open to him [23]. In the Director’s Further Decision, the Director found that he failed to establish BOR2 or BOR13 risks.

The Board’s Decision

9. The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 6 March 2018.

10. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

11. The Board considered the applicant’s evidence and found that the applicant was not a credible witness [5 & 6]. The Board had raised a lot of questions in paragraph 7 of the Board’s Decision, which it took to be no answers. But those questions seem not to have been put to the applicant for answers. They are rhetorical questions raised by the Board in its deliberation of the case. The Board also held that relocation was an option open to the applicant [14].

Application for leave to apply for judicial review

12. The applicant filed Form 86 dated 31 August 2018 for leave to apply for judicial review of the Board’s Decision.

13. In his affirmation in support of his application, he submitted that he was not legally aided in his application for judicial review. He also complained that he was not given legal aid for his BOR 2 risk assessment.

DISCUSSION

14. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

15. In Nupur Mst v Director of Immigration[2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16. The rhetorical questions should have been put to the applicant for his answers. However, I do not find that those questions relate to the finding of the facts by the Board. Nor would they affect the option of internal relocation open to him.

17. The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

18. I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.

Dated the 30^th day of June 2020

	(Mike Mak)
	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

Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
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)).		Sent to the Applicant on 30/6/2020 Chopra Amit Applicant’s ref. no: Nil.		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 30/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3284/16/3/89/IN766 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2260/15 & RBCZ 9002208/17 (formerly RBCZ 2001053/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

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