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

CACV 141/2018

[2018] HKCA 726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 141 OF 2018

(ON APPEAL FROM HCAL NO. 450 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Cheung JA (giving the Judgment of the Court) :

I. Factual background

1)  Appeal from First Instance Judge

1.1  This is an appeal against the decision of Deputy High Court Judge (‘DHCJ’) Woodcock refusing leave to the applicant to apply for judicial review.

1.2  The applicant has failed to file his skeleton arguments according to the directions given by the Registrar of Civil Appeals and contained in the letter to the applicant dated 10 August 2018 at paragraphs 3(1) and 4.  In such circumstances, the hearing date of the appeal, namely, 19 October 2018, was vacated, and this Court will proceed to consider the appeal on paper.

2)  Factual background

1.3  The applicant is an Indian national who allegedly entered into Hong Kong illegally by boat on 21 August 2015.  He was arrested by the police on the same day.  On 24 August 2015 and 9 September 2015, the applicant raised his torture claim.

1.4  In essence, the applicant says that in the past he had been assaulted and threatened by the Communist Party of India (Marxist) (‘CPIM’) members/supporters (‘CPIM people’) as he was a supporter of the ‘Congress Party’, an opponent political party.  He claimed he would be ill‑treated, seriously harmed or even killed by the CPIM people if he were to go back to India, and that internal relocation within India was not a viable option for him.

1.5  The background is summarised in the Torture Claims Appeal Board Decision (‘Board’s Decision’) as follows :

(1) The applicant was born in India;

(2) The applicant attended primary school;

(3) The applicant was a helper in a market, and then he was self-employed in a trading business;

(4) In April 2006, the applicant was posting banners for his Congress Party when CPIM people approached and demanded him to stop.  An argument arose;

(5) In June 2006, certain CPIM people approached the applicant at a bar with pistols and hockey sticks etc.  The applicant escaped after hurting a CPIM person (‘first incident’);

(6) The applicant ran away and went into hiding for a few days at a friend’s place.  He was injured but he did not go to the hospital nor report it to the police, believing that the police could not help;

(7) The applicant went into hiding at his mother’s home because his family members told him that CPIM members tried to find him and kill him;

(8) In July 2006, the applicant went to Mumbai, India to hide;

(9) On 22 September 2006, the applicant came to Hong Kong.  He left on 25 September 2006;

(10) In October 2006, the applicant returned to his neighbourhood to hide either at his mother’s or his maternal grandfather’s place;

(11) The applicant ran into a CPIM member but managed to escape.  He decided to leave for Hong Kong;

(12) On 27 November 2006, the applicant arrived in Hong Kong.  He left for mainland China on 10 December 2006 and returned on 11 December 2006;

(13) Since 4 May 2007, the applicant overstayed and he was arrested on 12 July 2007.  On 28 July 2007, the applicant made his first application for non‑refoulement protection (‘first claim’);

(14) On 16 October 2008, the applicant made a written request to withdraw his first claim (‘first withdrawal of claim’);

(15) On 7 September 2010, the applicant made a written request to re-open his non‑refoulement claim (‘second claim’);

(16) On 31 July 2012, a removal order was made against the applicant;

(17) On 2 May 2013, the applicant wrote to the Immigration Department indicating that he should not be removed from Hong Kong pending determination of his second claim;

(18) On 25 October 2013, the Director rejected the applicant’s claim on the ground of torture risk;

(19) On 16 March 2015, the applicant requested the Director to withdraw his second claim.  The Director therefore treated the claim as withdrawn (‘second withdrawal of claim’);

(20) On about 2 April 2015, the applicant went back to India.  He thought his conflicts with CPIM members should have faded after around 9 years;

(21) In May 2015, certain CPIM people came to the applicant’s house, assaulted and threatened the applicant (‘second incident’);

(22) The applicant went into hiding in Mumbai in June 2015.  He thought it would be safe to do so;

(23) In July 2015, the applicant went to visit his maternal grandfather when he was ambushed and attacked by CPIM members with wooden sticks.  Passers-by intervened.  The applicant fled (‘third incident’);

(24) In August 2015, the applicant left India for China by flight and sneaked into Hong Kong from Shenzhen.  On 21 August 2015, he was arrested by police.  

(25) On 24 August 2015, the applicant made a non‑refoulement claim.

(26) On 9 September 2015, the applicant wrote to the Director requesting to re‑open his previous claim (‘third claim’).

3)   The Director’s Decision and the Director’s Further Decision                                                                    

1.6  The Director decided against the applicant’s torture claim on 15 April 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (‘Director’s Decision’).   By a further decision of the Director of 9 June 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

4)  The Board’s Decision

1.7  The applicant appealed against the Director’s Decision to the Board on 29 April 2016.  After a hearing held on 21 June 2017, the Board dismissed the applicant’s appeal on 20 July 2017 (‘Board’s Decision’).

1.8  The Board based its refusal in part on the following finding of facts :

‘ 82. The Claimant’s case is that he was a supporter of the “Congress Party”. At the early stage of the hearing, despite probing, the Claimant was unable/unwilling to clarify whether by “Congress Party” he was referring to the “All India Trinamool Congress”, “India National Congress” or the “National Congress Party”. He was unable/unwilling to give the names of the party leaders. He was unable/unwilling to clarify whether the political party he supported was a state party or a national party. He said in the beginning there was no “Trinamool” party but that is not what the COI shows. I find this rather odd. However, towards the end of the hearing, when his attention was drawn to the COI showing that the All India Trinamool Congress had won in the 2016 West Bengal Legislative Assembly election, the Claimant became able to say that the party he supported was not the All India Trinamool Congress. Again, I find this rather odd.

83. The Claimant’s case is that he became involved in politics in 2006 and shortly after that, he ran into trouble with the CPIM in April 2006. Since then, he had been on the run hiding himself in different places. His first and foremost concern then was his safety. He was not doing business during that period up to October 2006. Yet, his immigration history reveals that he had visited Hong Kong from 22 September 2006 to 25 September 2006. In his testimony, he did reveal that he was trading in electronics from 2002 to 2006. I have dismissed the possibility of the Claimant’s being merely forgetful about his September 2016 trip to Hong Kong as he was able to give many other pertinent details with reasonable accuracy. It is rather unlikely to be a careless or forgetful omission. I have serious doubts about his alleged running away and hiding to avoid being harmed by the CPIM people.

84.…The Claimant’s case is that he came to Hong Kong with the specific purpose of seeking projection [protection]. He came to Hong Kong on about 27 November 2016 [2006]. Yet it was not until some 8 months later that he made his claim for non‑refoulement protection on 28 July 2007, and this took place only after he was taken into custody for over‑staying. I consider it rather odd. It would be naïve to accept that he had delayed in lodging his claim because he did not know how to do it.

85. As noted above, the Claimant’s claim for non‑refoulement protection has taken a rather chequered path alternating between withdrawing his claim repeatedly and resuming his claim subsequently. The Claimant’s testimony is to the effect that since he came to Hong Kong for protection in late 2006, he had been keeping up contact with his family members and his friend Azad. He had relied on the evaluation provided by his such contacts to decide whether it was safe for him to return to India. He was unable to give any details on how his contacts made such evaluations for him. I consider it odd. I also consider it odd that the Claimant had not done more to ensure that his return to India would be safe and was contented to rely on the evaluations made by his contacts.

86. I also consider it implausible that the CPIM people would go to such lengths to try to harm or even kill the Claimant bearing in mind that the Claimant was a mere supporter of his political party. He was not a leader. I am aware that it is the Claimant’s case that he had used a broken glass bottle to injure one of the CPIM people during the first incident, but the first incident was on 12 June 2006 and the Claimant had only used a broken glass bottle to hit at the leg of one of the CPIM people who were then attacking him. There is nothing to show that the CPIM man had sustained any serious or permanent injury as a result. As to the arguments and confrontations that the Claimant allegedly had with the CPIM people before the first incident, I consider it implausible that such would result in the CPIM people holding any grudges against the Claimant for a prolonged period of time.

87. It is inherently improbable that the CPIM people would still hold grudges against the Claimant after the long lapse of time. It is implausible that they would have held grudges against the Claimant long enough to warrant the alleged assaults on and threats towards the Claimant in the second incident and the third incident.

88. I think the above illustrations will suffice to explain my assessment of the Claimant’s credibility. To put it in a moderate manner, my assessment is that the Claimant is not a credible witness and the facts that he has asserted in his story is not established on a balance of probabilities. The Claimant’s evidence is not credible in general. I do not accept that the Claimant had any disputes with the CPIM people. I do not accept that the Claimant was assaulted by the CPIM people. I do not accept that the Claimant had been running away from the CPIM people for his safety. I do not accept that the Claimant had been injured by the CPIM people…’

5)  Decision of DHCJ Woodcock

1.9  After reviewing the Director’s Decision, the Board’s Decision, the Director’s Further Decision, Form 86 and the applicant’s supporting affirmation with exhibits, DHCJ Woodcock on 30 April 2018 refused to grant leave to the applicant for judicial review.

1.10  DHCJ Woodcock’s decision in part was as follows :

‘ 14. The other ground the applicant relies on is that the adjudicator relied on a source of news which was not officially recognized 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 judgment, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review…’

1.11  The applicant filed his notice of appeal to the Court of Appeal on 7 May 2018.

II.     Grounds of appeal

Notice of appeal

2.1  The notice of appeal of the applicant simply states the following :

‘ …… the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.’

2.2  The grounds of appeal are bare allegations with no supporting reasons or arguments.

2.3  In essence there are three grounds relied upon by the applicant :

1) He will face hardship if he is to be refouled (returned) to his home country (‘Hardship argument’);

2) The Board’s reliance on the source of news as referred to in the Director’s Decision and the Director’s Further Decision is unjustified as it is not officially recognized and at most hearsay (‘News argument’);

3) The cases as cited in the Board’s Decision are outdated (‘Case argument’).

III.  Discussion

3.1  We are of the view that the applicant’s appeal is without merits.

1)     Hardship argument

3.2  The applicant states that he would face hardship if he is to be refouled back to his home country.

3.3  The Board has stated the correct legal position regarding the applicant’s Hardship argument.  It is settled law that the asylum seeker should be required to establish a reasonable degree of likelihood that his/her fear will materialize, in that persecution will take place.  The test of a ‘real risk’ was approved by the Court of Final Appeal in Hong Kong in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.

3.4  The Board has already made its finding of primary facts.  It has found that the applicant cannot establish risk of persecution, BOR 3 risk, torture risk and BOR 2 risk because on its findings, the applicant was not a credible witness.

3.5  As a result, the applicant’s own case on the facts and evidence does not support any alleged claim of hardship.  The Hardship argument falls apart.

2)     News argument

3.6  The ‘source of news’ was not identified by the applicant but presumably he was referring to the Country of Origin (‘COI’) information.

3.7  There is no merit in his argument that the Board’s Decision ‘significantly relied on source of news which is not officially recognized’ or is hearsay, because the Board’s Decision was decided predominantly on the applicant’s lack of credibility.

3.8  Upon a proper reading of the Board’s Decision, it is plain that the Board considered COI ‘…not because I have found any risk to have been established.  I do so only for the sake of completeness.  Even if I were to assume the first incident, the second incident and the third incident had indeed taken place …I would not have accepted that they (CPIM people) would pose any danger to the Claimant outside their sphere of influence: West Bengal…’.

3.9  As a result, there is no merits in the applicant’s complaint of source of news being unreliable and at most hearsay.

3)     Case argument

3.10  The applicant had simply not identified which authority relied upon by the Board is no longer good law.

IV.   Disposition

4.1  It has not been shown that there is any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process. DHCJ Woodcock was correct to refuse to grant leave to apply for judicial review.

4.2  There is no prospect of success in the intended application for judicial review and the appeal is dismissed accordingly.