MOHAMMED EKBAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL450/2017

[2018] HKCFI 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 450 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national whose Immigration history is not straightforward.  His first torture claim was made in July 2007 after he was arrested for overstaying but withdrawn in October 2008.  In September 2010 the applicant requested to reopen his torture claim and he was screened and interviewed in August 2013.  After assessment his torture claim was refused on 25 October 2013.  On 16 March 2015 the applicant requested to withdraw his non‑refoulement claim and wrote that he wanted to return to India.  He was removed to India on 2 April 2015.  On 21 August 2015 he was arrested by the police for illegally remaining and admitted he had again entered Hong Kong illegally.

2.  He was allowed to make a subsequent non-refoulement claim on 14 September 2015.  This was rejected by the Director of Immigration (“the Director”) on 15 April 2016,  and 9 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 20 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 24 July 2017 and requested an oral hearing which was set down for 21 December 2017.

3.  The applicant was absent on the hearing date. The notice of hearing was collected by hand by the applicant on 6 December 2017 and a receipt was signed acknowledging this by the applicant.  When the applicant did not appear, the court clerk had the interpreter called the applicant’s mobile telephone number and a friend of the applicant said that he, the applicant, was not well that day and did not intend to attend the court hearing.  There has been no further correspondence from the applicant to date.  I reserved my decision that morning and I now consider the application on the papers.

4.  The basis of the applicant’s claim was that if he were to return to India he would be harmed or killed by members of the Communist Party of India (Marxist) (“CPIM”) because he had clashed with them when he was putting up banners in Kolkata during a Parliamentary election in 2006.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend to summarise it here.

5.  The applicant was born in 1974, had primary school education, worked in a market and then as a self-employed Trader.  He was a supporter of the Congress party and was paid by them to put up banners during elections.  In April 2006 the applicant was posting banners in Kolkata for the Congress party with two others when two CPIM members stopped him from doing that. Angry words were said but there was no violence.  The applicant said this confrontation happened a few times until their party won the election in June.  After they won, the applicant was surrounded by a group of CPIM members one afternoon, some with weapons.  He grabbed a bottle, broke it and managed to hit one of them with it on his leg and then run away.  He hid for hours until he could go to a friend’s home where he stayed for days.  His family said they came to his home looking for him.

6.  The applicant returned to his home district but not his home in October 2006; he stayed with his grandfather.  He learned that the CPIM members were still looking for him and threatening his family to tell them his whereabouts.  Once, whilst at his grandfather’s he was nearly caught by a CPIM member but escaped.  He then decided he had to leave the country and seek protection in Hong Kong.  He did not once report the threats to the police because they would not investigate the ruling party.  He left India for the first time for Hong Kong on 26 November 2006.

7.  He returned in 2015 because he thought the CPIM would have forgotten him but one night in May 2015 a gang of 8 to 10 men broke into his house and attacked him with wooden sticks.  He decided to leave again that night.  He returned at the end of June.  One day in July 2015 he went to visit his grandfather when he was ambushed by six attackers armed with wooden sticks and recognised some as the same men who attacked him in May in his own home.  Some passersby intervened and they ran away.  He was sent to hospital because he was badly beaten and discharged the same day.  He went to stay with his sister and hid there for 20 to 25 days.  Then he decided to leave India again for Hong Kong and left on 18 August 2015.

8.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

9.  The adjudicator had conducted an oral appeal hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles for all four applicable grounds as well as the burden of proof and standard of proof.  He set out the applicant’s claim as well as his analysis of the applicant’s evidence, to his assessment of credibility and his findings.  What Country of Origin (“COI”) information he did refer to and rely on, he set out the citations in detail.

10.  The adjudicator did not find the applicant a genuine claimant.  He gives full reasons for that finding.  He did not believe he had any long-standing dispute with any CPIM members nor was he at risk from any if he returned home.  He concluded that the applicant had failed to establish he would face a real risk of torture, or CIDTP under BOR 3, a real risk of being deprived of his right to life under BOR 2, a real risk of persecution and a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if he is refouled to India.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

12.  Ground 1 submits the appeal bundle was in English and the applicant was unable to afford an interpreter.  This meant he attended the appeal hearing confused and had a lack of understanding on what would happen during the hearing.  He goes on to say he answered all the questions with honesty and he was aggravated that his credibility was found questionable.  He believed the hearing was unfair due to a lack of care taken by the TCAB in making appropriate arrangements in relation to the hearing bundle.

13.  The hearing bundle in essence, contains the applicant’s evidence which includes his non-refoulement claim form (“NCF”) and his two written records of his screening interviews.  It would also include the COI referred to in the hearing before the Director.  There is no record of any complaint by the applicant to the adjudicator at the appeal hearing that he was ill-prepared because the bundle was in English or any request by the applicant to the adjudicator for assistance from the interpreter provided to read any documents to him before the hearing commenced.  There is no complaint of this nature during that hearing which one would expect if it had been a real issue for the applicant.  There is no merit in this ground.

14.  The other ground the applicant relies on is that the adjudicator relied on a source of news which was not officially recognised or hearsay as well as out of date.  In light of his finding that the applicant was not credible, the COI information he referred to is neither here nor there. He did not need to go into great depth where that was concerned. What he did consider relevant appeared statistical and what he did question the applicant about was simply the names of political parties to ascertain which party the applicant says he assisted during the elections in 2006.  There is no merit in this ground.

15.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

16.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

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

Form CALL-1