Syed Faisal Hussain v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2700/2018

[2022] HKCFI 708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2700 of 2018

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

Following;

	cconsideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.         Leave to apply for Judicial Review against the Board’s Decision be granted; and

2.         The applicant shall take out the originating summons within 14 days after the grant leave in accordance with Order 53, rule 5(5) of the RHC.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 15 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of India.  He entered Hong Kong on 12 January 2006 and was permitted to remain as a visitor until 14 January 2006. He did not depart and had overstayed.  On 1 July 2006, he lodged a torture claim which was rejected and the subsequent appeal was also dismissed.  On 4 September 2013, he lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by some Hindus because of his religion as a Muslim. 

5.According to the applicant, he was followed by some men who he suspected to be Hindus early in 2002.  In around December 2003, he was attacked by four to five Hindus with sticks for around 15 to 20 minutes.  The applicant did not report the attack to the police as he thought that the police would not assist him.  Ten days after the first attack, the applicant was beaten up by three Hindus.  He was later told that some Hindus deliberately followed the Muslims to kill them.  Again, in the end of 2004, he was attacked twice by the Hindus, both of which caused him injuries.  Feared of the attacks, he came to Hong Kong for the first time.  In around December 2005, he went back to India to visit his parents and encountered another attack from the Hindus.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out in paragraph 7 of the Notice of Decision dated 16 October 2015 by the Director (“the Director’s First Decision”) and paragraphs 4 to 29 of the Board’s Decision described below. 

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By the Director’s First Decision, the Director refused his claim on the grounds of BOR3 risk and Persecution risk.  The Director found that there were no substantial grounds to believe that the risk of harm from the Hindus upon refoulement were real and foreseeable because (i) the low frequency and intensity of past ill-treatment were indicative of the unlikelihood of future risk of harm [14]-[15]; (ii) state protection was available to him [16]-[19]; and (iii) internal relocation was a feasible alternative for the applicant [20]-[25].  In a Notice of Further Decision dated 6 December 2016, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to support that he would be subjected to violation of his right to life upon his return. 

8.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board.  The Board scheduled an oral hearing on 17 March 2017 for his appeal.  Nevertheless, the applicant did not attend the hearing [3]. 

10.The Board considered all the information provided by the applicant.  The Board noticed that there were inconsistencies in the evidence provided in the applicant’s previous torture claim with those provided in the present non-refoulement claim.  In particular, the Board observed that in the previous torture claim the applicant confirmed that he was attacked by the Hindus six times instead of five times [31]-[45].  The Board also identified the inconsistencies in the applicant’s evidence in relation to the details of the attack happened in December 2005 [46]-[53].  Further, the Board cast doubt on his reason for returning to India in 2005 due to the contradictory accounts he provided [54]-[57].  As a result, the Board did not accept that he had provided truthful information for his non-refoulement claim and dismissed his appeal [57]. 

11.Nevertheless, the Board proceeded to consider the applicant’s claim on the applicable grounds.  In assessing the risk of harm, the Board found that the Hindus had no intention to kill the applicant and, during the incidents, the applicant did not suffer serious injuries [59].  The Board also refused to accept the applicant’s claimed continuous fear from the alleged surveillance by the Hindus as it was simply a speculation that the men were Hindus and the applicant failed to submit or disclose supporting evidence [60]-[61].  In any event, after evaluating the country of origin information, the Board concluded that state protection and internal relocation were both available to the applicant [62]-[68].  Thus, the Board rejected the applicant’s claim and dismissed his appeal.       

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 28 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he did not set out any specific ground.

DISCUSSION

14.In the Board’s Decision, the Board determined the appeal because of the applicant’s absence. It did not set out the required procedures under section 15 of Schedule 1A of the Immigration Ordinance, Cap.115, which provides:

(1) If a party to an appeal fails to attend a hearing, either in person or by a legal representative, the Appeal Board, on proof that the party has been served a notice of the hearing under section 13 of this Schedule, may proceed to hear the appeal in the absence of the party and, subject to subsections (2) and (3), determine the appeal.

(2) Before proceeding to determine an appeal after hearing the appeal in the absence of a party, the Appeal Board must—

(a)  give the party written notice of the Board’s intention to do so; and

(b)  state that the party may submit to the Board, within 7 days after the notice is given, a written explanation of the party’s failure to attend the hearing together with any documentary evidence supporting the explanation.

(3) If the Appeal Board—

(a)  has not received the party’s written explanation together with supporting documentary evidence (if any) within the period specified in subsection (2)(b); or

(b)  is not satisfied with the party’s written explanation or supporting documentary evidence,

the Board may determine the appeal by making a decision under section 23(1) of this Schedule despite the party’s absence at the hearing.

(4) If the Appeal Board is satisfied, on the basis of the party’s written explanation and supporting documentary evidence (if any) submitted under subsection (2)(b), that the failure to attend was due to reasonable cause, the Board may fix a date, time and place for hearing the appeal.

15.The Board had therefore reached its decision without complying with the above procedure, a procedural unfairness, which renders the Board’s Decision subject to judicial review.

CONCLUSION

16.I therefore grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant shall take out the originating summons within 14 days after the grant of leave in accordance with Order 53 rule 5(5) of the RHC.

Dated the 21^st day of March 2022

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