MAHMOOD ALAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 220/2016

[2018] HKCFI 273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 220 OF 2016

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions ex-parte by the Applicant in open court;

Leave to apply for Judicial review refused

Observations for the applicant:

Introduction

1.   The applicant seeks leave to apply for judicial review, seeking relief to quash the decisions of the Director of Immigration (“the Director”) dated 14 October 2014 and the decision of the Adjudicator[1] of the Torture Claims Appeal Board (“the adjudicator”) dated 24 November 2016. 

2.   The basis of the applicant’s claim is that he fears he will be harmed and/or killed by some people who were affiliated with the Communist Party of India (Marxist) (the “CPIM”) or the Trinmool Congress Party (TMC) if he is returned to India. 

Procedural Background

3.  The applicant is a 44-year-old Indian national.  On 16 June 2005 he left India for Hong Kong from the airport in Kolkata.  He reported that after arriving in Hong Kong he made a refugee application to the United Nations High Commissioner for Refugees and the application was refused.

4.  He remained at large in Hong Kong until he was arrested by police on 14 November 2007.  He lodged his claim under Article 3 of the Convention against Torture and other Cruel, Inhumane or Degrading treatment or Punishment [the convention] on 17 September 2008.  That torture claim was not completed under the previous scheme.  Upon the commencement of the Unified Screening Mechanism (USM) on the March 2014 the applicant’s claim was taken to be a non-refoulement claim and assessed under the USM.

5.  The applicant’s claim was assessed on all applicable grounds and was rejected by the Director.  He consequently filed an appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the TCAB”).

6.  There was a hearing to determine the appeal before the adjudicator on 20 July 2015.  The applicant’s appeal was dismissed and the Director’s Decision was affirmed.

7.  On 1 December 2016, the applicant filed an application for leave to apply for judicial review against both the decision of the Director and that of the adjudicator.  He requested and received an oral hearing.

Factual basis for the Applicant’s claim

8.  The applicant was born and brought up in Kolkata, West Bengal India. The applicant’s father was a loyal member of the Indian National Congress Party (INC).  His father served as secretary for the party in the area and because of his longtime support for the party and its councillors, his father was influential in the local area.  Under the influence of his father, the applicant joined the INC in 2000 when he was about 28 and despite his father’s encouragement to try hard he did not hold any position in INC.  The applicant used to run a business trading in cosmetics and garments before fleeing India for his safety.

9.  The CPIM was the opposition party against INC.  The applicant and his father had trouble with CPIM members since 2000.  One day in that year some CPIM supporters approached them in the street in Kolkata and among them was the head of CPIM.  They threatened the applicant and his father to join CPIM or else they could do anything to them.  Despite the threats, his father declined to join their party.  A scuffle broke out between them and in the course of the incident the father was pushed onto the ground and suffered a scratch on his head.  The applicant did not suffer any injury.  They did not make a report to the police as it was not usual in the area for the people to report to the police incidents in relation to a political issue.  Furthermore, the applicant thought the police would not entertain that complaint as CPIM was in power.

10.  After this incident, whenever the CPIM supporters spotted them in the street they approached them and threatened to kill his father if they did not both join.  They also went to their home to harass the family 3 to 4 times a month.  They threatened the family and said words to the effect “You should think of the future of your son.  If you do not join our party, we will not let your son live peacefully.”

11.  The CPIM members always disrupted the meetings and rallies of INC.  On occasions when the applicant tried to stop attendees from leaving he was attacked but the applicant did not suffer serious injuries.  On one occasion he was hit with a hockey stick on his back and suffered internal injury.  He sought medical treatment in a clinic where his wound was plastered with medicine and he was given medications.  For one and a half months he returned for follow-up medical treatment every 2 to 3 days.  On another 2 to 3 occasions whilst trying to protect workers attending the meetings or rallies CPIM intruders hurt his body causing him to suffer redness and swelling.  It took him about 20 to 25 days to recover.

12.  In 2004 the applicant’s father passed away.  The applicant believed that the death of his father had something to do with his mental tension caused by the harassment of the CPIM members.  Thereafter the applicant began to think he could be easily killed by the CPIM people now that he had no protection from his father.

13.  For the next six months about 2 to 3 times a month after his father’s death he was constantly harassed by a group of 7 to 8 CPIM people whilst in the street.  Each time they pushed him around, verbally abused him, threatened to beat him and even to kill him if he did not join the CPIM.

14.  Accepting the advice of friends, the applicant moved to Santeshpore in late 2004 which was about 45-minute bus ride from his home. He rented a place and found a job there.  Nothing happened to him for 5 to 6 months.  During this time his family told him that some CPIM people came to enquire about his whereabouts on one or two occasions.  He thought the problem was getting worse as CPIM was getting more powerful.  On 16 June 2005, he left India for Hong Kong from the airport in Kolkata. After he left India, CPIM was dissolved and merged with TMC.  Despite that, the fear of the applicant had not subsided.

Leave to apply for judicial review against the Director’s Decision

15.  The Applicant has taken the option available to him of the alternative remedy of appealing to the TCAB.  As a result, judicial review of the decision of the Director is not an option open to him. 

16.  However, for the sake of completeness, I am unable to find that the Director has erred in his application of the legal principles.  He provided a thorough and detailed analysis of the evidence.  The Director did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  There was no procedural impropriety or a failure to adhere to a high standard of fairness.  None of the grounds are reasonably arguable nor do they have any realistic prospects of success. 

Leave to apply for Judicial Review against the Adjudicator’s decision

17.  The adjudicator analysed the applicant’s claim under all applicable grounds.  It covered the ‘torture risk’ under Part VIIC of the Immigration Ordinance cap 115, the Hong Kong Bill or Rights Ordinance Cap 383 ‘BOR3 risk’, the risk of persecution (Articles 33 and A(a)(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

18.  In his decision the adjudicator applied the correct legal principles on all applicable grounds. 

19.  At the hearing of the appeal the applicant provided further evidence to support his claim. When asked why the CPIM people wanted him to join their party, he painted a picture of himself being a very active and important member of INC who had about 200 subordinates. He asserted he was still a member of INC after his absence from India all these years, however if he was not he would rejoin them again.  He claimed INC would require him to join as he knew too many secrets of the INC.  He prevaricated when he was asked to mention two such secrets but eventually mentioned two.  The adjudicator did not accept that for these matters the INC would require him to join the party, or would harm him in any way if he does not do so.  He found that all these secrets must have lost their relevance after all these years. 

20.  The adjudicator found that the new information provided by the applicant was not credible and did not advance his claim any further.

21.  The adjudicator went on to consider whether there was a future risk of harm.  The adjudicator considered that during the numerous encounters with the CPIM people the applicant was not seriously injured.  He found there was nothing to show that the group harboured an intent to harm the applicant seriously or to kill him.  The true identities of these people were not known and there is nothing to suggest that they have a motivation to harm seriously or to kill the applicant.  The applicant did not know the personal details of those people and in particular if they were officials.  There is no evidence to suggest they were acting in any official capacity or that the harassment involved any public officials or that their conduct was instigated by or with the consent or acquiescence of a public official or any other person in an official capacity.

22.  The adjudicator considered the low risk would be reduced further if the applicant relocated to other parts of India.  The risk of harm would be reduced to a much lower level.  Given the demographic characteristics of India, the vast area of India, and its huge population, it would be difficult for them to locate the applicant and not without much effort and resources. The adjudicator found that as a matter of fact they did not or were unable to locate the applicant when he moved out of town to Santeshpore.  

23.  The applicant claimed that CPIM was no longer in power as it had been dissolved and merged with TMC and the people who harassed him in the past have joined TMC, therefore his problem still exists.  The adjudicator found there was no basis for the applicant to suggest that those CPIM members have joined TMC.

24.  He found the level of future risk of harm from CPIM, TMC and INC to be very low and the claim for non-refoulement failed.

25.  The adjudicator went on to conclude that the applicant had failed to establish he would face a risk of persecution under the Refugee Convention.

Grounds relied upon by the applicant

26.  The applicant relied on 8 grounds in his affirmation.  Having now dealt with a number of applications for judicial review the 8 grounds relied upon appears to be strikingly similar to those grounds in previous applications.  Most of the grounds are devoid of any particulars.  They are bare assertions. 

Grounds 1, 2, 3 and 4

27.  In grounds 1 and 2 it is submitted the adjudicator failed to consider relevant and up to date COI research, failed to put any weight on the relevant COI research, cherry picking and taking into account and putting weight on COI information of little or no relevance.  In ground 3, the applicant complained that the adjudicator failed to evaluate and make a finding of fact as to whether there exists in India has no gross flagrant or mass violations of human rights as mandated pursuant to Article 3 (2) of CAT.  Ground 4, the adjudicator misdirected himself on the law erroneously stating what the extended meaning of state protection was.

28.  The adjudicator carefully and fairly considered the relevant and up to date COI research in paragraphs 19 and 20.  He was entitled to put weight on the COI that he did, which was of relevance.  He was fully aware of the matters complained of in ground 3.  There was no misdirection on the law in ground 4.  These grounds are not reasonably arguable.

Ground 5

29.  Ground 5, the adjudicator took into account and put weight on irrelevant considerations or considerations that were incorrect, and accurate or not based on fact or facts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favorable to the applicant.

30.  The adjudicator carefully analysed and considered the facts and fairly made his finding on the facts.  There is no merit in this ground.

Ground 6

31.  Ground 6, the failure to call for psychological and psychiatric evaluations and reports.

32.  There again were no particulars within this ground.  The adjudicator fairly considered the low risk of harm.  In any event, at no stage did the applicant put forward as part of his claim at any stage mental torture or psychological or psychiatric issues. 

Ground 7

33.  Ground 7, the adjudicator applied an incorrect standard of proof in decision. 

34.  On a thorough reading of the adjudicator’s decision, the adjudicator applied the correct standard of proof.

Ground 8

35.  Ground 8, the failures at first instance by the assigned duty lawyer resulted in a lack of and or insufficient legal representation for the applicant and he was not afforded a fair procedure. 

36.  There is once more no particulars as to how the duty lawyer failed in his representation of the applicant.  There is no merit in this ground.

Conclusion

37.  I have considered with rigorous examination and anxious scrutiny the papers, grounds of his application and the applicant’s oral submissions made before me.  I find the adjudicator’s decision to be without fault.  He analyzed the materials, claim and evidence carefully.  I am unable to find there was any error of law by the adjudicator.  I see no procedural unfairness or impropriety.  The decision did satisfy the enhanced Wednesbury test, it was not Wednesbury unreasonable. 

38.  None of the grounds are reasonably arguable, they have no reasonable prospects of success.  The applicant’s application for judicial review is refused.

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of the application in the light of the respondent’s evidence.

Form CALL-1