Khan Shamim v Torture Claims Appeal Board / Non-refoulement Claims Petition Office And Another [Decision On Leave Application]

Judgment Date02 June 2020
Neutral Citation[2020] HKCFI 444
Judgement NumberHCAL596/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL596/2018 KHAN SHAMIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 596/2018

[2020] HKCFI 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 596 of 2018

BETWEEN

Khan Shamim Applicant
and
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent
The Director of Immigration 2nd Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 32-year-old national of India who arrived in Hong Kong on 31 December 2013 with permission to remain as a visitor up to 14 January 2014 when he did not depart and instead overstayed and was arrested by police on 15 January 2014. Afterhe was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute. He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Ekbalpore, Kolkata, India. After leaving school he worked as a salesman and lived with his father and sister in the family house inherited from his grandfather and shared with his paternal uncle and his family.

3. However, the relationship between his father and his uncle was not good due to his uncle’s persistent attempts to get rid of his father and his family from the house so that he could have the entire property for his own which had led to many conflicts between the two families.

4. One day in 2012 his father discovered that his name in the title of the house had been deleted with his uncle being the sole registered owner after his father was earlier tricked into signing away his interest in the house, and when his father confronted his uncle about the matter, it led to a heated quarrel between them during which his uncle struck his father with a hammer causing injuries to his head that he was hospitalized.

5. After the incident his sister reported the matter to the police, but no follow-up action was taken by the police and the Applicant suspected that it was due to his uncle’s influence in his home village.

6. Upon his discharge from the hospital, his father returned to the house to recuperate,but when his uncle continued to harass his father, the Applicant confronted his uncle who however threatened to do the same to him if he did not leave the house.

7. After his uncle’s threats, the Applicant approached the village elders for assistance but to no avail, and sometimes thereafter when he ran into his uncle on the street, his uncle rebuked him for taking the matter to the village elders and threatened that his family would be thrown out of the house if he dared to do it again.

8. In December 2013 the Applicant was approached by a friend to assist in his garment business, and on 31 December 2013 he accompanied his friend to travel to Hong Kong on business, during which he received a telephone call from his sister that his uncle was planning to kill him and warned him not to return to India for his own safety, and so the Applicant overstayed in Hong Kong, and upon his arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9. By a Notice of Decision dated 22 August 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of...

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