MOHAMMED FIROZ KHAN v. WESLEY WONG, ESQ., TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 473/2018

[2019] HKCA 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 473 OF 2018

(ON APPEAL FROM HCAL NO 877 OF 2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 21 September 2018, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 7 November 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 12 February 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2104.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of India.  He came to Hong Kong as a visitor on 2 June 2007 and was allowed to stay until 16 June 2007.  He did not depart and overstayed since 17 June 2007.  He was arrested by the police on 13 February 2008 and was subsequently referred to the Immigration Department for investigation.  On 27 February 2008, he lodged his non-refoulement claim. His claim was based on his fear of being harmed, or even killed, by a man called Akbar who was a member of Congress Party (“CP”) whereas he was a supporter of Communist Party of India (“CPI”).

5.  By a Notice of Decision dated 26 September 2014, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 27 April 2015, the Board dismissed the appeal on 25 June 2015.  The Board found at [19] to [21] of its decision that the applicant’s evidence was contradictory and unreliable.  Even on the applicant’s evidence, he was only being pushed around and threatened once because of private money dispute with Akbar. His experience fell far below the minimum level of severity.  Further, with reference of the objective country of origin information (“COI”), the Board took the view that internal relocation and reasonable state protection should be available to the applicant. With the aforesaid reasons, the Board found that the applicant had failed to establish his claim on BOR 3 risk, torture risk and persecution risk.

HCAL 123/2015

7.  On 8 July 2015 the applicant filed his Form 86 under HCAL 123/2015 for leave to apply for judicial review of the Board’s decision.  The applicant put forward the following grounds for his intended challenge :

(1)  failing to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  failing to take into account or putting proper weighton relevant COI, cherry picked COI and put weight on irrelevant COI in the consideration of his claim;

(3)  failing to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(4)  failing to analyse and assess whether state protection exists in India and misdirected himself as to the extended meaning of state protection;

(5)  taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  failing to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  applying the incorrect standard of proof in his decision; and

(8)  lack of legal representation.

8.  On 23 September 2016 and upon appearing in person the applicant’s application for leave for judicial review was refused and dismissed by Li J.

9.  On 28 December 2016, the Director on his own initiative invited the applicant to submit any additional facts which he might consider relevant to his non-refoulement claim, in particular, the absolute and non-derogable rights under HKBOR being violated including right to life under Article 2 (“BOR 2 risk”).  Upon considering the applicant’s further submission in which he essentially repeated his claim of fear of being killed by his enemy and gangsters upon returning to India, the Director found no evidence that he would be subjected to personal risk of any of his absolute or non-derogable rights under HKBOR including BOR 2 risk being violated upon his return to India.  By a Notice of Further Decision dated 13 January 2017, the Director rejected his claim on BOR 2 risk.

10.  The applicant then appealed to the Board in respect of the second decision of the Director.  After the hearing on 3 October 2017, the Board dismissed the appeal on 6 November 2017.  At the hearing, the applicant just repeated his claim of having serious problems in India relating to his debt owed to Akbar and that he would face real risk of harm if refouled.  As the applicant’s evidence and submission failed to address his claim on BOR 2 risk, the applicant’s appeal was dismissed.

HCAL 877/2017

11.  On 13 November 2017, the applicant filed another Form 86 for leave to apply for judicial review in respect of the second decision of the Board.  In his supporting affirmation of the same date, he merely put forward the same eight grounds as in his previous application under HCAL 123/2015 which were all rejected by Li J.

12.  At the oral hearing before the Judge, the applicant confirmed that he relied on the same grounds as stated in the Form 86 under HCAL 123/2015 to challenge the second decision of the Board without making any further representation or submission.

THE JUDGE’S DECISION

13.  On 21 September 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [12] – [16] for his refusal to grant leave :

“ 12. In my consideration of the merits of the same eight grounds of the applicant in support of his application now before me, it would be relevant to first refer to the following passages of the decision of Li J in his refusal of the applicant’s application relating to his claim under BOR 2 risk :

‘ 44. The applicant mentioned the right to life (article 2 of BORO) in his grounds of review. He claimed that he might be subject to extra-judicial killing if deported to India. This ground was never raised before the Director or the TCAB.

45. Article 2(1) of the Bill of Rights Ordinance (BORO) safeguards the right to life—every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. ….

47. A State should take appropriate steps to deter offences against a person and to prevent such risk to life by putting in place effective criminal-law provisions backed up by law-enforcement machinery. However, it mustbe established that the authorities knew or ought to have known at the time ofthe existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. (Osman v UK, ECHR judgment of 28 October 1998, §§115 – 116).

48. So far as this case is concerned, the considerations under the present USM include those considerations under Article 2. There is no need to treat this right separately.

49. In my view, the story of the applicant fell far short of the above requirement. The applicant was caught in a personal loan dispute. There was only verbal threat. His life was not at risk.

50. There was no evidence that the government knew or ought to have known that his life was at risk. Both the Director and the Adjudicator found that the Indian government was able to provide reasonable protection to its citizens. The claim under Article 2 BORO failed.

51. Having considered the decisions of the Director and the Adjudicator, I agree with their reasoning set out above. The story of the applicant was not credible. I reject the grounds of review set out in the Form 86. There is no error of law or procedure.

52. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.’

13. As noted above, there was no appeal by the applicant against that decision.  In his application now before me, the applicant presented no additional facts or submission relevant to his claim under BOR 2 risk, of which the Director correctly considered that he had failed to establish any personal and real risk upon his return to India, and as found by Li J above, his grounds for which are not reasonably arguable as being just broad and vague assertions without any particulars or specifics or elaborations relevant to his claim under BOR 2 risk, and of which I am similarly unable to find any basis or merit in any of them.

14. Further, the fact that it has been established by both the Director and the Board in their respective earlier decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

15. In the premises and having proceeded to consider the second decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THE APPEAL

14.  The applicant filed the Notice of Appeal filed on 26 September 2018 and in his supporting affirmation filed on the same day, he set out following grounds of appeal :

“ (1) The Honourable Deputy High Court Judge Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement.

(2) The Honourable Deputy High Court Judge Bruno Chan failed to provide detailed reason in support of his decision.”

15.  Exhibit A annexed to the applicant’s supporting affirmation contained various grounds for judicial review against the Board. They were canvassed at the lower court and were duly rejected by the Judge.

DISCUSSION

16.  Ground 1 is lacking in particulars and substance.  The Judge rightly found at [14] of the CALL-1 Form that the Board, after due consideration of the relevant and up-to-date COI, came to the right conclusion that the applicant’s claim was a localized and private one and it should be reasonably safe for the applicant to return to his home country by relocating to other part of India.  We do not see any error of law or principle in the Judge’s finding and Ground 1 is not reasonably arguable.

17.  Ground 2 is a bare allegation unsupported by any reason or argument.  As it is apparent from the parts of the judgment as set out in paragraph 13 above, this allegation is without merit.  The Judge clearly explained the reasons for his decision in those paragraphs of the CALL-1 Form.

18.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.