RE KHAN KHALIL

CACV 42/2018

[2018] HKCA 264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 42 OF 2018

(ON APPEAL FROM HCAL 222 OF 2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Madam Justice Au‑Yeung on 5 February 2018 refusing leave to the applicant to apply for judicial review. The applicant is an Indian national. According to the applicant, he was wrongly accused of murdering his uncle on 29 June 2013. The applicant’s cousins threatened to kill him for revenge. The applicant fled to Hong Kong on 10 December 2013 but he returned to India 14 days later when his visa was due to expire. On 14 January 2014 he visited Hong Kong again. Since 29 January 2014, the applicant had been overstaying. He surrendered to the Immigration Department on 19 February 2014. On 11 March 2014 he lodged a non-refoulement claim.

2.  The Director decided against the claims on 9 November 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”). 

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 17 August 2016, the Board dismissed the appeals on 9 March 2017 (“Board Decision”).

4.  By a Further Decision of 28 March 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

5.  The intended judicial review was in respect of the Board Decision only.  The Form 86 filed by the applicant on 23 May 2017 did not state any ground of judicial review.  In his affirmation of 23 May 2017, the applicant argues that if he returns to India he faces 1) risk of ill-treatment from his cousins and 2) risk of wrongful detention by the Indian authorities.  He also relied on the following grounds:

(a)  Error of law in failing to treat the appeal as a rehearing.

(b)  Failure to enquire into the relevant country of origin conditions of India and cherry picking country of origin materials.

(c)  Misdirection of law in applying the relevant legal principles in suggesting that the applicant would need to prove past exposure to torture in order to establish substantial grounds for believing there was a future danger of torture.

(d)  When considering the duty of state parties, “acquiescence” had a wide meaning and was not limited to whether or not a person has been given any official status.

(e)  Procedural impropriety in failing to conduct sufficient enquiry into documents he submitted to the Immigration Department, his risk of arrest for a false murder case or risk of detention without committing any crime.

6.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [22] to [31] the CALL-1 Form of 17 November 2017:

“22. In respect of ground (a), the adjudicator apparently did intend to have a rehearing by way of an oral hearing. It was the applicant who chose not to attend. Despite the applicant’s absence, the adjudicator had considered materials submitted by the applicant. The adjudicator properly directed himself on the law and analyzed the evidence under each of the 3 limbs of the non-refoulement claim. He did not rely on the Director’s Decisions. Ground (a) has no merits.

23. Ground (b) is self-contradictory. In any case, the need to consider country of origin materials did not arise because the applicant simply failed to provide evidence of risk of harm and torture if he were returned to India. Ground (b) has no merits.

24. Ground (c) contains a misapprehension of the adjudicator’s decision. The adjudicator correctly guided himself in the law on torture risk and BOR3 risk in §§6-10 and 33-36 of his decision. The adjudicator was aware that the applicant was not assaulted or harmed in the past before his departure from India (§11 of his decision). The adjudicator was quick to state that the issue still remained whether there were substantial grounds for believing that he would be tortured or seriously harmed if he was returned to India (§12 of his decision). It was the right statement of what the adjudicator needed to consider. Ground (c) has no merits.

25. Ground (d) does not arise because the applicant had never even suggested before the adjudicator that the state was involved in the threats to harm or kill him.

26. Ground (e) does not point out what documents the adjudicator had failed to enquire into.

27. In respect of arrest for a false murder case or detention without committing any crime were matters for the domestic court in India, as far as the adjudicator was concerned, there was nothing to show that the state was involved in the falsity.

28. Specifically, the adjudicator was aware that the applicant and his brother were a named as one of 5 suspects in the murder of Uncle Meraj. The adjudicator stated expressly that the fact that the police was looking for him could not constitute illegitimate reason entitling him to non-refoulement protection in Hong Kong since the police was only discharging their duty to investigate the murder. There was no indication of any improper bias or target against the applicant.

29. Further, the mother had allegedly told the applicant that the cousin was looking to kill the applicant for having taken part in the murder. On the other hand, the cousin told the police that he, the cousin, saw the brother roaming in the vicinity of the Uncle Meraj’s house as one of the persons who conspired and murdered the Uncle; but the cousin did not mention the applicant as one of the gang. The adjudicator has not missed this contradiction in the applicant’s case.

30. Ground (e) has no merits.

31. None of the grounds put forth by the applicant are arguable so as to satisfy the test in Peter Po Fun Chan. I therefore dismiss this application.”

7.  In the notice of appeal of 13 February 2018, the applicant repeated the grounds in the Form 86.  He also advanced the ground that the judge failed to “take into account the consideration of psychological strain and threats … resulting from repeated threats to [the applicant] and/or beating or assaulted to [the applicant’s] family’s member”.

8.  The applicant agreed by a letter of 13 February 2018 that the appeal can be heard by two judges.

9.  In the skeleton submissions lodged by the applicant on 23 March 2018, he raised essentially the same grounds in the Notice of Appeal. 

10.  We heard the appeal on 3 May 2018.  At the hearing, the applicant made oral submissions to supplement the information provided in his affirmation and skeleton submissions.  He said that he was concerned that if he were returned to India, he may be falsely charged with the murder of his uncle, and was at risk of conviction on trumped up charges, as it was possible in India for persons to arrange with the police for false charges to be brought and prosecuted on the basis of false evidence.  He mentioned two instances in which, he alleged, this had happened, although it seemed that the persons wrongfully convicted were eventually freed when higher courts found that there was no evidence to sustain the charges against them.

11.  Having considered the submissions of the applicant in light of the materials before us, we found the judge’s observations to be justified. We deal first with the matters raised in the notice of appeal and skeleton submissions.

12.  We agree with the judge’s assessment of grounds (a) to (c) raised in the applicant’s affirmation dated 23 May 2017.  The Board had treated the appeal as a rehearing and properly directed itself in assessing the COI and future risk of torture.

13.  For ground (d), the Board held that there is no evidence to suggest that the state would acquiesce in the perpetration of harm on the applicant and that state protection is available (§24 Board Decision).  There is no scope for finding risk of torture based on the concept of state acquiescence. We deal below with the allegation that the Indian police might seek to prosecute the applicant on a false charge of murder.

14.  For ground (e), the applicant argued that he will be wrongly detained by the police upon his return.  The Board noted that the police are looking for the applicant as part of an investigation (§20 Board Decision).  The applicant’s brother Aurangzeb was also arrested by the police but he was subsequently released on bail.  The applicant failed to provide any evidence to justify the allegation of wrongful detention.  This ground has no merit.

15.  As for the new ground of “psychological strain” raised in the notice of appeal, the applicant did not file any evidence to support this claim nor do we see any reason why leave should be granted to adduce such evidence at this stage.  This ground has no merit.

16.  Lastly, the Board held that that the evidence given by the applicant was not credible (§23 Board Decision).  There is no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatments which meet the high threshold as required by law, see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

17.  Having considered the applicant’s additional oral submissions, we do not think that they can take the matter any further.  First, no evidence was adduced in support of the allegations made by him, whether as to the alleged propensity of the Indian police to bring false charges, or as to the two cases mentioned by him.  There is therefore no proper basis for his allegations.  Moreover, the applicant was able to say only that he might be subjected to a false prosecution, and on the material before us, it is not possible to say that the risk of this happening is a real one.   

18.  For the foregoing reasons, we do not see 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. We agree with the judge that leave to apply for judicial review should not be granted.

19.  We thus do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.