Khan Khalil v. Torture Claims Appeal Board

HCAL 222/2017

[2018] HKCFI 279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 222 OF 2017

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D E C I S I O N

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1.This is an application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) dismissing the applicant’s non-refoulement claim.

2.The applicant was absent before the TCAB.  He is absent today despite notice of hearing being served on him.  The application is therefore dismissed.  I have in any case considered his application on the merits.  Here are the reasons.

The Background

3.The applicant was born in Kolkata district, West Bengal, India in 1994.  He is single.  His father is deceased.  His mother, 3 sisters and a brother are still living in India.

4.The applicant’s grandfather owned a piece of land in Kolkata.  After the death of the grandparents, there have been disputes among the applicant’s uncles and the applicant’s mother as to rights over the land.  In mid-2010 the applicant’s mother declined to give consent to sell the land.

5.On 29 June 2013, one of the uncles, Meraj, was shot dead.  The applicant’s brother (“the brother”) was arrested on suspicion that he had murdered Uncle Meraj and the applicant was wanted by the police.

6.According to the applicant, the wife of Uncle Meraj accused the applicant and his brother of murdering Uncle Meraj.  The brother’s shop had been vandalized by the son of Uncle Meraj (“the cousin”).  The cousin was searching for the applicant.

7.On the advice of the mother, the applicant went into hiding in a shrine, then to 2 places in New Delhi and finally to another place in West Bengal.  He kept in contact with his mother who told him that the brother was still detained by the police, that there was a warrant of arrest against the applicant and that the cousin had threatened to kill the applicant for revenge. 

8.On the advice of the mother, the applicant left India for Hong Kong on 10 December 2013.  He returned to India 14 days later when his visa was due to expire.  He went to Hong Kong again on 14 January 2014 “to save his life”.

9.The applicant has overstayed in Hong Kong since 29 January 2014.  He surrendered to the Immigration Department on 19 February 2014 and lodged his non-refoulement claim on 11 March 2014. 

10.The mother told the applicant that he, but not his brother, had been declared a fugitive in their hometown.  The brother has since been released on bail.  The mother told the applicant not to return to India.

11.The applicant claimed that if he were to return to India he would be ill-treated, killed or persecuted by his cousin and his other uncle. If the police were to find him, he would be arrested and detained. 

12.The applicant claimed non-refoulement protection under 3 limbs known as the torture risk, BOR3 risk and persecution risk.

13.The Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.

14.The applicant’s appeal to the TCAB was dismissed.

TCAB’s Decision

15.The adjudicator of TCAB found against the applicant on credibility.  He held that the applicant had failed to prove that there were substantial grounds for believing that he would be tortured or seriously harmed or subject to cruel, inhuman or degrading treatment or punishment, if he were returned to India.

16.In any event, the adjudicator found no evidence to show that if the applicant were to be seriously harmed, any public official would be in any way involved in the perpetration of such harm or acquiesced in it.  The applicant’s claim with regard to torture risk and BOR3 risk failed.

17.The adjudicator also found that if the applicant would be harmed upon return to India, it would not be for any of the 5 reasons recognized under the Refugee Convention, i.e. for reason of race, religion, nationality, membership of a particular social group or political opinion.

18.The adjudicator also found that after the alleged dangers to the applicant had arisen, the applicant had succeeded in remaining undetected at several places until he departed for Hong Kong. Accordingly, even if the applicant was face a real risk of harm upon return to India, as a 21-year-old male with around 2 years’ experience of working as a market researcher, he could relocate to any of the places he had previously stayed or any area away from his home.

Grounds for application

19.In his supporting affirmation, the applicant set out the following grounds for seeking leave to apply for judicial review.  I broadly categorized them as follows:

(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.

Legal principles for judicial review

20.The burden is on the applicant to show that the grounds advanced are arguable: Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, §§14-17.

21.The court does not sit on appeal from the adjudicator’s decision. It only plays a supervisory role in the judicial review. The standard of review is that of “rigorous examination and anxious scrutiny”: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, §45; TK v Jenkins & anor [2013] 1HKC 526, §40.

Analyses of the grounds

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.

Other matters

32.The supporting affirmation of the applicant also sought leave to apply for judicial review of the decision of the Director.  There had been 2 such decisions, one dated 9 November 2015 and the other 28 March 2017.  None of them formed the subject matter of Form 86.

(a)  In respect of the 1^st Director’s Decision, the applicant has already used the alternative remedy available, namely, an appeal to the TCAB. I have declined to give leave to apply for judicial review.

(b)  In respect of the 2^nd Director’s Decision, it is not open to the applicant to bypass the alternative remedy of an appeal to the TCAB and come to the Court of First Instance for seeking redress in judicial review direct.

33.There is simply no reason for granting the applicant leave to apply for judicial review of any of the Director’s Decisions.

The applicant was not represented and did not appear