ALI AKBAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2173/2020

[2023] HKCFI 3283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2173 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 29 October 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 23 October 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 September 2018 (the “Notice”). 

2.  The Applicant is an Indian national.  He entered Hong Kong on 3 September 2012 as a visitor and was permitted to remain until 17 September 2012.  He overstayed and was arrested on 23 October 2012.  On 25 October 2012, he made a claim for protection under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) which was rejected by an immigration officer on 15 March 2013.  His appeal against the immigration officer’s decision was dismissed by the Board on 2 May 2013. 

3.  Two weeks earlier, on 18 April 2013 he applied for non-refoulement protection under the Unified Screening Mechanism (“USM”).  In due course, his non-refoulement claim was assessed on all applicable grounds under the USM other than the risk of torture under Part VIIC of the Immigration Ordinance which was covered by his Torture Claim which was conclusively decided, namely, BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] grounds.  His claim was dismissed by the Director’s Notice.  His appeal against that Notice was dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the supplemental claim form (“SCF”) filed in relation to the present claim prepared by him with legal assistance; the questionnaire and various records of interview in relation to his Torture Claim, his two notices of appeal; and his evidence before the Board.  In gist, he claims that, if refouled, he would be harmed by members of a political party known as CPM because of his affiliation with another political party known as Trin Mul Congress (“TMC”); and will be arrested and prosecuted for a false murder charge framed against him.

5.  The Applicant, now aged 42, was born in Kolkata, West Bengal, India.  He had not received any education. He had worked as a salesman, a vegetable trader, a wood supplier, a garment trader and a worker.  In 2004, he and his brother along with three others supported CPM which promised them government jobs.  The promise never materialised.  In 2007, they switched to support TMC which also promised jobs to its supporters. They supported TMC for two to three years.  As a result, the Applicant became a target of CPM.

6.  Between 6 and 7 pm on an unknown evening in 2008, while the Applicant and his brother were chatting in a street junction, five to six CPM members armed with knives and revolvers approached.  They asked the Applicant to re-join CPM for four to five times. When the Applicant refused for the last time, he and his brother were violently attacked by the CPM members.  They sustained multiple cuts.  The Applicant was hospitalised for about 10 days.  A police report was made but was dismissed as a mere political party dispute with no further action being taken. 

7.  In the same year, the Applicant’s three brothers were charged with possession of illegal firearms and large knives on the basis of false accusations brought by CPM.  They were sentenced to single or multiple terms of imprisonment of between one and half months to five months.  

8.  In 2009 or 2010, the Applicant established a Freedom Welfare Centre (“Centre”) to assist the poor in their neighbourhood.  Its success attracted TMC.  TMC leaders visited the Centre and endorsed the work of the Centre.  The success of the Centre increased the popularity of TMC.  CPM was displeased with the success of the Centre.  It demolished the Centre in March 2012 and assaulted the Applicant’s mother during the course of the demolition. 

9.  In March 2012, a CPM member, Lal, was shot to death.  Upon learning that the police were looking for him in relation to the murder, the Applicant fled to Bihar, then to Bangalore, and eventually arrived at Hong Kong by air on 3 September 2012. 

10.  While he in Bangalore, the Applicant learnt that his home, his sister’s home, his fiancée’s home and the Centre were all demolished by CPM members.  After coming to Hong Kong, he learnt that the police had refused his mother’s application to rebuild his home.  He believed CPM had bribed the police.  Lal’s family had also threatened to kill his brother if he rebuilt his family’s house.  He also learnt that six TMC members had been detained in Central Jail for the murder of Lal for six years and the murder was still under investigation.  He feared that if he returned to India, he would be held in custody for the murder of Lal as well.

11.  The predicament faced by him and his brother has put his family through mental distress to the point that his father passed away due to the pressure and his mother fell ill due to constant worry.  As he is wanted for a serious crime in India, he believes internal relocation within India is impossible.

The finding of the Board

12.  The Applicant testified before the Board.  The Board found numerous inconsistencies in his evidence and some aspects of his evidence are incredible.  Hereunder are some of the more significant difficulties in the Applicant’s evidence.

13.  Despite he had been a supporter of CPM for a number of years, he did not even know its full name.  More importantly, according to the country of origin information (“COI”), CPM and TMC had no presence in West Bengal where the Applicant lived.  When this was pointed out to him, he was unable to respond.  The Board considered he fabricated the story about the rivalry between political parties using abbreviations he had heard in the past. 

14.  In his testimony, the Applicant was unable to give correct information about which political party was in power during the relevant period.  His original story was he and his brother were pursued by CPM.  But upon learning from the COI that TMC was in fact in power, he changed his evidence to the effect that he and his brother were being pursued by TMC (not CPM).  But this change did not stand well against his own evidence that he and his brother had switched to support TMC and that the Centre they set up had TMC’s endorsement.  The Board found the Applicant had no hesitation to give whatever evidence he thought suited him best at the particular moment.  It found the Applicant not credible.

15.  The Board noted the Applicant’s testimony that his mother was beaten up badly by CPM people when his family’s three houses were demolished was a first time assertion which had never been mentioned in his evidence before the Director.  The Board considered it a recent fabrication.

16.  The Board also found it inherently improbable that a political party would have spent so much resource to pursue him, including demolishing the three family homes and the Centre, when he was just a supporter, not even a member of TMC, and he had only supported TMC for two or three years.

17.  The Applicant arrived at Hong Kong on 3 September 2012 and overstayed.  It was only after he was arrested that he made a claim for protection.  His explanation was that he did not know which department to approach.  Having regard to his readiness to seek police protection in India, the Court did not accept his explanation.  The Board drew as the only reasonable inference from these facts that he did not come to Hong Kong to seek international protection.

18.  The Board came to the conclusion that the Applicant’s case was fabricated and there was no credible evidence to support his claim for protection.  It therefore found he had failed to establish the factual basis to support his claim for protection under any of the remaining three applicable grounds under the USM.

19.  The Board went on to hold that even if his evidence were accepted, the Applicant is not entitled to protection.

20.  In respect of BOR 2 Risk ground, the Board found there is no evidence that the government or state of India will violate the Applicant’s right to life and that this ground does not require Hong Kong to refrain from refouling an individual to a state which practises capital punishment.

21.  In respect of BOR 3 Risk ground, the Board found the injuries suffered by the Applicant fell far short of attaining a minimum level of severity to entitle him to protection under this ground.  As for torture arising from the false murder charge, the Board dismissed the risk on the basis that there is no evidence that the Indian Court will convict the Applicant without regard to the evidence just because it was CPM or TMC who made the complaint.

22.  In respect of Persecution Risk ground, the Board found the feared ill-treatment is not on account of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality or membership of a particular social group or political opinion. Though the feared ill-treatment arose out of a backdrop of political rivalry between CPM and TMC, it was nevertheless a personal dispute either between the Applicant and CPM for switching allegiance or between the Applicant and TMC which the Applicant was unable to provide any cause or motive, which is all the more fatal for this ground to succeed.  Hence, the risk falls outside the protection of this ground. 

The legal principles applicable to judicial review

23.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[4]. 

Grounds for judicial review

24.  After explaining the above principles to the Applicant, he confirmed he could not think of any such grounds of complaint, but left it to the Court to look for such grounds on his behalf.  He had not put forward any grounds of application for judicial review in his Form 86.  In his supporting affirmation, he said:

“… [the Decision] was not right decision because I was submit my all document proof to them include my medical report. But all are disregard by petition teams if I go my life become danger and my enemies are very powerful I like to live. Therefore I am seeking justice and solution for my life. I will explain all in my oral hearing …”

The essence of his complaint is that the Decision is wrong because the Board failed to take into account all the evidence, in particular his medical reports, which support the injuries he suffered and the risk to his life. Arguably, this complaint may reveal error of law and procedural unfairness.

Discussion

25.  The medical reports and hospital discharge certificates etc were mentioned among the list of documents considered in the Director’s Notice.  The immigration officer accepted that the assault in May 2008 was genuine, the Applicant suffered injuries and was hospitalised for about ten days as he claimed.  But these documents were not amongst the documents listed in the Board’s Decision.  They may or may not have been included in the hearing bundle.  As they had not been mentioned in the Decision, the Court accepts that they had not been considered by the Board as relevant at all.  However, the Board had indeed considered the incident.  It asked numerous questions to clarify the case of the Applicant about the incident, presumably in its joint endeavour to establish the Applicant’s claim[5].  Unlike in relation to many other aspects of his case which it disbelieved or queried, the Board made no criticism whatever of the Applicant’s evidence about the assault, the injuries he suffered and his hospitalisation.  Despite it found the Applicant not credible and had fabricated his evidence, the Board seemingly accepted his evidence about the attack (but not the identity of the assailants or the cause of attack), the injuries and the hospitalisation.  The medical evidence only serves as corroborating evidence which supports the injuries suffered, but not the identity of the assailants or the motive of the attack.  On his own evidence, the Applicant suffered injuries mainly on his arm in warding off the attack, received stitches and had plastic surgery which required about ten or fifteen days’ (as he later claimed) hospitalisation.  His brother suffered more serious injuries and required longer hospitalisation.  The Applicant was able to take a taxi to the police station and the police then took him to a hospital[6].  It was on the basis of his evidence that the Board assessed the injuries he suffered could not have been life threatening or attained the minimal level of severity.  As the Board accepted his evidence about the injuries in total and assessed the severity of the injuries on that basis, that the medical evidence had not been placed before the Board or had not been considered by the Board has no impact on the Decision.  Hence, there was no procedural unfairness arising from the Board’s failure in considering the medical evidence.

26.  As reflected by the criticisms of other aspects of the Applicant’s evidence, what the Board was not satisfied was the overall credibility of the Applicant and the credibility of his case as reflected in his lack of knowledge about the two rival political parties, that both political parties had no presence in West Bengal where the Applicant lived, his real motive for coming to Hong Kong, his first time allegations and more importantly his changes in evidence.  As mentioned above, his change in evidence in alleging that he and his brother were being pursued by TMC instead of CPM completely damaged his credibility and demolished his own case.  He could offer no motive for TMC pursuing its own supporters and made a non-sense of his case that TMC framed him for murdering a CPM member.  The Board found the Applicant was not a credible witness who had no hesitation to give whatever evidence which he thought would best advance his claim.  It found the Applicant fabricated the story about the rivalry between the two political parties.  It did not believe he came to Hong Kong to seek international protection.  It found his story that a political party would incur so much resource in persecuting him, who was just a supporter and not a leader or a member of another rival political party inherently improbable.  The Board’s primary finding is that the Applicant is not a credible witness and hence failed to prove the factual basis in support of his application for protection.  The adverse finding on credibility is so overwhelming as to diminish the significance of the 2008 incident.  In the circumstances, it would not be difficult to understand why while accepting the Applicant’s evidence about the attack and injuries, the Board did not find it was in any way related and relevant to his claim for protection.  The injuries may, as the immigration officer held, have been inflicted by some other people for some other cause which had no bearing to the Applicant’s claim.  These are finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. 

27.  Putting that primary finding aside, the Board found in the alternative that even accepting his evidence, the Applicant has failed to establish the factual basis to support his claim for protection on all four applicable grounds: see Paragraphs 19 to 22 above.  In respect of the 2008 incident, the Board accepted that he was attacked and suffered injuries, but found on the basis of his evidence that the injuries did not attain the minimum level of severity as to entitle him to protection.  Again, the medical evidence would not have assisted the Applicant.

28.  The Board’s alternative finding is solely based on the factual case as the Applicant asserted.  He could have no reason to complain about the Board’s finding of these primary facts.  It was on that basis that it found he is not entitled to protection under any of the four applicable grounds.  That is a mixed finding of fact and of the law.  Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Insofar as it is finding of the law, it is absolutely correct. 

29.  Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no substance in any of the grounds of application advanced by the Applicant.  The Court is also satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues raised in the claims.  The Court could detect no error of law or procedural unfairness in the Decision, whether in its primary decision or alternative decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.  The leave application is therefore refused.

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

[1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] [2018] HKCA 524 at [14(1)]

[5]  Paragraphs 72 to 91 on pages 14 to 17 of the Decision

[6]  Paragraph 81 on page 16 of the Decision