Gora v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 852/2018

[2020] HKCFI 2471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 852 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 C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1984, is a national of India.  He arrived in Hong Kong on 28 July 2010 and was refused permission to land.  He lodged a refugee claim first and later lodged a claim for non-refoulement protection in January 2011.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [1] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant, a born Christian, would be harmed or even killed by the head of his village who forced him to convert to Sikhism.  The village head had assaulted and threatened to kill him.  In May 2010, the village head attacked the applicant and even fired shots into the air to force him to give him his land which he inherited from his grandparents.  He also forced the applicant to join his political party.  The applicant refused.  Worried about his safety, he moved to live with his friend in another area until he left India for Hong Kong.

The Director’s decision

4.The applicant did not return his non-refoulement claim form by the time limit as required by law and his claim was treated as withdrawn.  He later applied to re-open his claim which was granted by the Director.  During the screening interview on 25 August 2016, he claimed that he was not fit to be interviewed due to his sickness for which he later produced a medical certificate for “URI and headache”.  Another screening interview was scheduled for him on 18 November 2016 upon his request. The Duty Lawyer Service confirmed that the duty lawyer assigned to him would attend the interview with the applicant. On 18 November 2016, the applicant stated that at the screening interview that he needed additional time to submit additional facts as he had yet to contact his family members in India for the current situation there. The Director decided to proceed to determine his claim on the basis of all information available.

5.By a notice of decision dated 24 November 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed that the risk of harm to him was not likely to materialize and he found state protection as well as internal relocation as a reasonable option available to the applicant.  The decision covered  torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

6.The applicant was absent in the hearing scheduled before the Board on 8 January 2018.  On that day an officer of the Board contacted the applicant via telephone.  He answered that he would not attend the hearing. The Board wrote to him later asking him for written explanation for his absence within 7 days.  He failed to respond within the time limit.  On 19 January 2018, the Board received a letter from him saying that he had changed his address and he did not have the time or money to travel to the Board.  He asked for forgiveness.  The Board decided to proceed to its decision.

7.By a decision dated 12 April 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

8.The Board gave detailed reasons for rejecting the applicant’s claimat para [12-40] of its decision.  The essential reasons can be summarized as follows:

(1)     the applicant, denying the Board an opportunity to raise issues and concerns it had with him, forfeited his own opportunity to provide further information in support of his application [12];

(2)     with the important issues unexplained, the Board did not accept his evidence regarding his claims made in relation to his being pressurized to convert from Christianity to Sikhism, and/ or pursued by his village head, and/ or that such claimed events took place [39];

9.Having considered all the evidence, the Board found that the applicant failed to established his claim on all applicable grounds.

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 16 May 2018 for leave to apply for judicial review of the decision of the Board.

11.By a letter dated 24 June 2020 sent to his address last reported to the Immigration Department, the court invited the applicant to submit information including any submissions that he would like to make and confirm whether an oral hearing is requested.  Since then, the applicant has not made any response or submission to the court.  The application is therefore considered on the papers.

12.In the Form 86, the applicant did not set out any grounds for the relief sought.  In the affirmation in support, he stated that his life is in danger and he has the “right to living this earth”.

Discussion

13.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

14.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

15.The Board made a determination without an oral hearing.  I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 in respect of the requirement of an oral hearing.  The Board scheduled an oral hearing for the applicant but he failed to attend.  He told the officer of the Board that he would not attend and in his subsequent letter to the Board, he said he did not have time or money to travel to the Board.

16.The explanation was unconvincing and unacceptable.  Even if it were true that he had no money for travelling, he could have approached the Duty Lawyer Service, voluntary NGO or the Immigration Department for assistance.  In any case, he did not ask for another oral hearing.  It was entirely proper for the Board to proceed to its decision without another oral hearing.

17.As can be seen from the decision of the Director, the applicant repeatedly delayed the screening process. His conduct was more consistent with someone evincing an intention to abuse the process than the reaction of one in genuine fear of his safety. 

18.There cannot be any criticism of the fairness in the processes adopted by the Director and the Board.

19.In the present case, the Board dismissed the applicant’s appeal/ petition on the ground that it rejected the account of primary facts asserted by the applicant in support of his claim.  On the factual findings, there would be no basis for the applicant’s claim on all applicable grounds.

20.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so. 

21.The complaints raised by the applicant in his affirmation did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  I do not find any reasonably arguable basis to challenge the findings of the Board.

22.Indeed, even on his own account, the alleged past ill-treatment was of low intensity and frequency demonstrating a remote risk that he would be killed or seriously harmed in his home country.  It cannot be established that the applicant would be at real risk of any type of proscribed harm, if refouled.

23.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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

24.For the reasons given, there is no realistic prospect of success in the applicant’s intended application.  I refuse to grant leave to apply for judicial review.

Dated 8 October 2020

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