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Alam Mahtab v Torture Claims Appeal Board / Non Refoulement Claims Petition Office

Judgment Cited authorities 8 Cited in 1 Precedent Map Related
Vincent
Judgment Date28 February 2019
Neutral Citation[2019] HKCA 231
Year2019
Judgement NumberCACV487/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV487/2018 ALAM MAHTAB v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 487/2018

[2019] HKCA 231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 487 OF 2018

(ON APPEAL FROM HCAL NO 366 OF 2018)

_______________

BETWEEN
ALAM MAHTAB Applicant
and
TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE Putative Respondent
and
DIRECTOR OF IMMIGRATION Putative Interested Party

_______________

Before: Hon Barma, Poon and Au JJA
Date of Judgment: 28 February 2019

_______________

J U D G M E N T

_______________

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

1. This is an appeal against the decision of Campbell-Moffat J (“the Judge”) on 26 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 2014. 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 31 December 2013 and was allowed to stay until 14 January 2014. He did not depart and overstayed since 15 January 2014. He was arrested by the police on 7 February 2014. On 9 February 2014, he lodged his non-refoulement claim. His claim was based on his fear of being harmed, or even killed, by the supporters of Trinamool Congress party (“TMC”) because he had some long term private disputes with TMC for being a supporter of the Communist Party of India (Marxist) (“CPIM”).

5. By a Notice of Decision dated 30 November 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 12 June 2017, the Director also rejected the applicant’s claim BOR 2 risk.

6. The applicant then appealed to the Torture Claims Appeal Board (“the Board”). After the hearing on 20 September 2017, the Board dismissed the appeal on 22 February 2018. At the hearing, the applicant admitted that he had not been harmed after the incident of suspected attack by TMC people in November 2012 in which the applicant alleged that a suspected TMC member tried to shoot him with a gun, but fortunately he managed to duck down and avoided being hurt. There were other incidents of attacks, which were caused by private disputes of local rival political parties and the applicant sustained injuries during his fights with the TMC people. The Board found that these experiences did not meet a minimum level of severity. Further, with reference of the objective country of origin information (“COI”), there was no suggestion of any untoward state involvement and the applicant could reasonably re-locate in his home county to avoid any future risk of harm/attack. With the aforesaid reasons, the Board found that the...

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1 cases
  • Alam Mahtab v Torture Claims Appeal Board / Non Refoulement Claims Petition Office
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 30 May 2019
    ...J U D G M E N T ____________________ Hon Poon JA (giving the Judgment of the Court) : 1. By a judgment dated 18 January 2019 ([2019] HKCA 231), this Court (Hon Barma, Poon and Au JJA) dismissed the applicant’s appeal against the decision of Campbell-Moffat J dated 26 September 2018 refusing......

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