Ben Salem Hassen v. Torture Claims Appeal Board

HCAL 1140/2018

[2019] HKCFI 2432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1140 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 53-year-old national of Tunisia who last arrived in Hong Kong on 22 August 2013 with permission to remain as a visitor up to 24 August 2013 when he did not depart and instead overstayed until 23 April 2014 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Tunisia he would be harmed or killed by the Tunisian government for political reasons and/or because he has lost his passport and/or by terrorists active in Tunisia.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in the State of Tunis, Tunisia, but went to school in Cairo, Egypt where he received his university education before returning to Tunisia and became a supporter of the political party Tunisian Islamic Party (“TIP”), and started his own fish exporting business supplying fish products overseas including to Hong Kong and China and where he had travelled frequently over the years.

3.In the early 2010s during the Arab Spring Revolution which started in Tunisia,TIP was renamed as Ennahdha Party, and the applicant together with his fellow Ennahdha supporters participated in many protests which eventually their party to win the general election. 

4.Thereafter the applicant returned to focus on his business and continued to make his business trips to Hong Kong and China.  However, in 2014 the Ennahdha Party stepped down after a political crisis in Tunisia, and a new coalition government was formed.

5.During one of his business trips to Hong Kong, the applicant received a telephone call from his brother in Tunisia that some of his fellow supporters had been arrested and prosecuted by the government, and that he was advised not to return to Tunisia for fear that he would also be arrested.

6.As he also heard the same warnings from his friends, and given the fact that there had also been reports of terrorists attacks in Tunisia, the applicant became fearful of being harmed if returned to his home country, he therefore overstayed in Hong Kong, and upon his surrender to the Immigration Department in April 2014, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 24 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

7.While being released on recognizance, the applicant was arrested by police on four separate occasions for fighting, thefts and obtaining property by deception, for which he was subsequently convicted and sentenced by the court to various terms of imprisonment ranging from several weeks to six months, with the last occasion being in February 2017.

8.By a Notice of Decision dated 2 November 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”),and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm by the Tunisian government or by terrorists upon his return to Tunisia as low due to the absence of any past ill-treatment from them, that there is no reliable or objective evidence that he had been targeted by the Tunisian authorities or by the terrorists and that his claimed fear was based entirely on hearsay only,that reliable and objective Country of Origin Information (“COI”) show on-going reforms in human rights situations in Tunisia with practical steps taken by the government to monitor the conduct of the police and to protect the rights of its citizens, and that reasonable internal relocation alternatives are available in Tunisia with a large population of 11 million people spread across a vast territory of more than 163,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Tunisia away from areas where terrorists were active so as to avoid or minimize the risks of their attacks.

10.The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 19 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the Applicant’s claim largely based on the general situation in Tunisia and the fact that if he were refouled that he would not have a full passport having lost it while in Hong Kong would not put him in any real and substantial risk of any harm or ill-treatment, that his party Ennahdha Party is now part of the ruling coalition government in Tunisia that will not pose any threats to the applicant, that the COI relied on by him simply indicate that there have been anti-government protests about economic issues which do not suggest that he will be at risk of harm due to general protests,and that terrorists strikes have largely been in the border area with Libya with no recent attacks in his place of domicile in Tunis, and that his frequent exit and entry from and to Tunisia demonstrates that he is of no interest to the authorities or the government of Tunisia that his claim for non-refoulement protection failed on all applicable grounds.

12.On 20 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the various grounds or complaints for his intended challenge which can be summarized as follows:

(1) that the adjudicator failed to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI of the present situations in Tunisia in the assessment of his claim;

(2) that the adjudicator failed to consider his claim properly by thinking that he was from Libya instead of Tunisia;

(3) that the adjudicator failed to consider the evidence produced by the Applicant adequately or at all in the determination of his claim;

(4) that the adjudicator failed to provide the Applicant with sufficient time to produce evidence in support of his claim;

(5) that the adjudicator failed to properly consider the risk of harm to the Applicant if he was returned to Tunisia; and

(6) that the adjudicator was wrong to conclude that the Applicant would not be at risk because he had never been arrested before by the Tunisian authority without taking into proper consideration of the fact that he would be arrested and prosecuted upon his return as he had lost his passport.  

13.These are however mainly just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI or fail to consider his evidence properly, or how did the adjudicator fail to give him sufficient time to produce his evidence in support of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while during his oral hearing before the Board he never made any request to the adjudicator for more time to produce further evidence in support of his claim.

14.As for his complaint that the adjudicator had mistaken that he was from Libya rather than Tunisia, while it is true that the adjudicator did once in paragraph 47 of the decision refer to the Libyan immigration authorities when considering his claimed fear of lack of passport if refouled to his home country which is Tunisia, given that the adjudicator was clearly aware that the Applicant was from Tunisia and had all along referred to the COI and materials relevant to Tunisia, I believe that it was just a honest typo when the adjudicator on that occasion mistakenly referred to Libya in the decision.  As such I do not find this ground of the Applicant reasonably arguable for his intended challenge.

15.Regarding his complaint that the adjudicator was wrong to conclude that he would not be at risk of being arrested by the Tunisian authority upon his return without his full passport, given the correct analysis and reasoning over this issue as set out in paragraph 47 of the decision with which I cannot find any fault, I do not find this ground reasonably arguable either.

16.As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis to challenge the finding of the Board. 

17.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 22 ^nd day of November 2019.

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