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

HCAL 2598/2018

[2022] HKCFI 830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2598 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

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

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 8 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 Bangladesh.  He entered Hong Kong as a visitor on 11 July 2006.  However, when his visa expired, he did not leave and had overstayed.  On 18 May 2007, he lodged a torture claim.  His torture claim was subsequently rejected by the Director on 19 July 2013 (“Decision on Torture Claim”) and, as discussed below, the appeal of the refusal was dealt with together with the appeal against the Director’s Decision by the Board. 

5.On 31 July 2013, the applicant further raised a claim under Convention against Torture or Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”).  His CIDTP claim was then taken as a non-refoulement claim upon the commencement of the unified screening mechanism and assessed under all the applicable grounds (other than the ground on torture risk).  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by his co-workers because he had taken up the post as the President of Chatra Dal (“Chatra”) in 2004. 

6.According to the applicant, he joined the Bangladesh Nationalist Party (“BNP”) in 2000 and had since engaged in activities to promote it to the villagers.  In 2004, he was elected the president of Chatra, the student wing of BNP.  The five co-workers, who joined the BNP prior to the applicant, became jealous of him and started to harass him.  They first framed him for a vandalism then, after a bombing incident which led to the arrest and subsequent bail of the applicant, threatened to kill the applicant if he refused to give up politics.  At the same time, the applicant claimed that he was tortured by the police during detention for the investigation of the bombing incident.  The applicant further claimed that he was attacked by the five coworkers who were armed.  Thereafter, the applicant escaped to other villages.  While he was away, he heard that the coworkers brought some gangsters to threaten his family for his whereabouts.  He was also warned by the coworkers not to come back to his home village.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim were set out at paragraph 14 of the Director’s Decision as defined below and paragraphs 10 to 39 of the Board’s Decision. 

The Director’s Decision

7.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”). 

8.By the Notice of Decision dated 29 June 2018, the Director set out the reasons for refusing his claim (“the Director’s Decision”).  In passing, it is noted that the applicant had failed to attend the scheduled screening interview with the Director without cogent explanation and requisite documentary proof.  Thus, the Director proceeded to assess his claim on all the available documents [6]-[10].  The Director found that the level of risk of harm from his coworkers upon refoulement was assessed to be low because (i) the low frequency and intensity of past ill-treatment from the coworkers were indicative of an unlikelihood of future risk of harm [23]-[26]; (ii) state protection was available to him [27]; and (iii) internal relocation was an option open for him [28]-[31]. 

The Board’s Decision

9.The applicant appealed both Decision on Torture Claim and the Director’s Decision to the Board.  On 5 October 2018, the Board conducted an oral hearing for his appeal, during which the applicant elected not to answer the Board’s inquiries.  The Board informed him that there was questionable evidence in need of clarifications and, without his oral evidence, the Board would have to make a decision on the available evidence [64]-[66]. 

10.The Board had concerns over the lack of documentary proof from the applicant.  It noticed that the applicant failed to submit any medical certificate for his alleged injuries or any documents to show his role in the Chatra [69].  On the applicant’s evidence with regards to the attacks and injuries, the Board found that, objectively evaluated, the injuries were not as serious as the applicant claimed and that the coworkers had no intention to kill him or cause serious bodily harm to him [70]-[73].  The Board also found that the evidence did not indicate any state involvement or acquiescence [74]. Further, the Board observed several inconsistences in his own evidence.  It also considered the applicant’s evidence on the kidnap and torture of his younger brother to be hearsay and pure speculation [75]-[79]. 

11.In addition, the Board found that the claimed dispute was a private dispute without state involvement, which had also long lapsed more than 14 years, and that state protection and internal relocation alternatives were both available to the applicant [81]-[82].  On the issue of credibility, the Board concluded that the applicant’s evidence was not credible [84].  As a result, the Board found that it was unable to attach any weight to the applicant’s evidence and that he had also not been subject to past ill-treatments which reached the degree of severity required to establish a non-refoulement claim [85].  In assessing the individual grounds, the Board again reiterated that, on the applicant’s evidence, his uncle had signed an agreement with the coworkers that if the applicant did not participate in the politics again the coworkers would spare him.  Since he had left politics in Bangladesh for more than 14 years, it was unlikely that the coworkers would harm or kill him upon refoulement [87].  Further, the state protection and internal relocation would negate the risk of harm, if any [88]-[89].  Thus, the Board found that the applicant failed to establish his torture claim.  For these reasons, the Board also rejected his claim on BOR3 risk, BOR2 risk and Persecution risk.  The applicant’s appeal against the Decision on Torture claim and Director’s Decision therefore failed and was dismissed. 

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 19 November 2018 for leave to apply for judicial review of the Board’s Decision. 

13.In his affirmation in support of his application, he said “The Decision of the Director of Immigration also TCAB was unreasonable, in that he failed to consider all the matters raised in my claim and/or give adequate reason for his Decision.”

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13(1) … Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

17.The applicant had been duly advised to answer the Board’s questions.  Yet the applicant elected not to give evidence.  The Board is entitled to assess his evidence on that basis and make findings against him.

18.The Court of Final Appeal in Li Defan & Another v HKSAR (2002) 5 HKCFAR 320 at §27, in which Lord Hoffmann NPJ cited the High Court of Australia: Weissensteiner v. The Queen (1993) 178 CLR 217 held:

“27. … in Weissensteiner …

‘…it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence.  It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.  In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.  …  It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence.  The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.”

19.One must bear in mind that the above is a criminal case where the burden of proof is on the prosecution and the defendant has no burden of proof of his innocence.  Therefore, the defendant is not obliged to give evidence.  In the present case, the burden of proof is on the applicant and he has the obligation of proving his case to the Director and the Board. 

20.The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

21.The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim.  See section 37ZA (1)(a).^[1]  As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences.  It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him.  High standards of fairness give no exemption to the applicant for the compliance of the Ordinance. 

22.In any event, the Board found that state was not involved in this case, therefore, state protection would be available to him and the option of relocation was open to him.  The applicant has not put forth any reasons to refute those issues in this application. 

23.The applicant does not have any valid ground to challenge the Board’s Decision. 

24.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational. 

25.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review. 

CONCLUSION

26.I therefore refuse to grant leave to the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application. 

Dated the 28^th 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

[1] 37ZA.Duties of claimant

(1)It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a)provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;