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Mohammed Moinuddin v Director Of Immigration [Decision On Leave Application]

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date03 June 2020
Neutral Citation[2020] HKCFI 1001
Year2020
Judgement NumberHCAL210/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL210/2018 MOHAMMED MOINUDDIN v. DIRECTOR OF IMMIGRATION

HCAL 210/2018

[2020] HKCFI 1001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 210 of 2018

BETWEEN

Mohammed Moinuddin Applicant
and
Director of Immigration 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 present / 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 35-year-old national of India who last arrived in Hong Kong on 21 March 2008 with permission to remain as a visitor up to 11 April 2008 when he did not depart and instead overstayed and was arrested by police on 16 April 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Kidderpore, Kolkata, India. After leaving school he started an embroidery business with a partner in Kolkata by borrowing a loan of 2.5 million Indian Rupees from a local money-lender at a monthly interest payment of 100,000 Rupees.

3. However, from 2000 to 2007 the Applicant was never able to make any monthly interest payment to his creditor, and in late 2007 his partner embezzled all the money and goods of the business and disappeared. As a result the Applicant fell into serious financial difficulty, and in early 2008 the money-lender came with several men to his home to demand repayment of his loan, and threatened to kill him if he failed to do so soon. After they left the Applicant reported their threats to the police but they did not take his case seriously.

4. For the following weeks the money-lender kept coming to the Applicant’s home with his men, and when the Applicant was not at home, they threatened his father that they would kill the Applicant if the outstanding debt was not settled soon.

5. Fearing for his life the Applicant therefore departed India on 6 March 2008 for Hong Kong where he eventually overstayed and raised his torture claim by a Torture Claim Form (“TCF”) which was later taken as a non-refoulement claim under the Unified Screening Mechanism, for which he completed a Supplementary Claim Form (“SCF”) on 20 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6. Whilst released on recognizance pending determination of his claim, the Applicant was arrested by police on 8 October 2008 for taking up employment without permission,and was subsequently convicted and sentenced to prison for six weeks.

7. By a Notice of Decision dated 29 May 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

8. In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his...

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