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

HCAL 1043/2019

[2022] HKCFI 1510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1043 of 2019

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 present in open court;

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

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

2.  The applicant has to take out the originating summons within 14 days after this decision in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 November 2017, which is the Decision of the Director of Immigration (the “Director’s Decision”) and the Board’s Decision dated 9 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Since the Director’s Decision had been dealt with by the Board’s Decision, the Director’s Decision is not amenable to judicial review.  The applicant’s Form 86 will be rectified upon the Court’s own motion below.

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him and he had appeared before the Court.

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, the Director of Immigration (the “Director”) is the interested party and the relief sought is for judicial review of the Board’s Decision.

The applicant

4.The applicant is a national of Nepal.  In January 2009, he went to Thailand, Macau, and China from where he sneaked into Hong Kong in February 2009. On 19 June 2012, he was arrested by police. On 22 June 2012, he lodged a claim under Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”).  His claim was refused by the immigration officer on 7 February 2013. By 2 written representations respectively dated 10 February 2014 and 17 February 2014, he lodged non-refoulement claim. His claim was dealt with under the applicable grounds except the Torture risk as described below. 

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the Maoists because he refused to join them. In 2004, he was arrested by police and detained inside the police station for 2 or 3 days. He was warned not to join any gathering in the public place. In 2005, he and his friend Indra were assaulted by 3 Maoists with fists and kicks. Their friend Rajkumar was beaten up and killed. His body was found in a jungle. He did not report the matter to police because he did not believe police would help him. Then he went to Birtamod with Indra. He was told that the Maoists were still looking for him and they threatened that they would kill him. The Maoists also harassed his family. But nothing happened when he was in Birtamod for 3 days. He left Nepal for India where he stayed for a month. Then he went to Alsamid, Saudi Arabia and worked as a driver there for 3 years from 2005 to 2008. In 2006, he returned to Nepal and stayed in Satdobato, Kathmandu for a month. Nothing happened. In January 2009, he paid an agent to get him to Hong Kong. Details of his story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

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 way of the Director’s Decision, the Director refused his claim.  The Director found that there was no substantial ground for believing that the risks of harm from the Maoists upon his return was likely to materialize because (i) the low intensity and frequency of past ill-treatment by the Maoists was indicative of a small risk of harm [20-30]; (ii) state protection was available to him [32]; and (iii) internal relocation was an option open to him [33-38]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 27 November 2018 for his appeal.  However, the applicant was absent from the hearing.  The Board served a statutory notice under section 15 Schedule 1A of the Ordinance to the applicant, advising him of the new date of hearing. The applicant replied saying that he had changed his residential address, but his correspondence address remained the same. He asked the Board to re-fix the hearing. The Board declined his request and sent him another letter, in which it advised the applicant that he might make written submissions to the Board regarding the Director’s Decision and the Board might proceed to assess his evidence. The applicant did not respond to this letter and the Board assessed his case.

9.The Board considered the evidence on paper and found that the evidence “does not persuade me that his particular claims are credible and I am unable therefore to decide on the credibility of his case. It follows that I am unable to estimate what risks, if any, he faces if he is refouled to Nepal or to decide whether or not he is entitled to non-refoulement under the provisions mentioned above. His claims therefore must be dismissed.” [51-53].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 17 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he set out his reasons, which I shall summarize below.

(1)  His duty lawyer having advised him that he had no merits for appeal, he had not legal assistance for his appeal.

(2)  He was unable to understand English well. He did not understand the contents of the Board’s letter dated 10 December 2018. Therefore, he did not respond to that letter. He should be provided with interpretation service for his understanding of the documents in English for his appeal.

(3)  The Board should not decide his case without hearing him. The Board should re-fix the hearing date for him. He considered that this practice was not applied to other Hong Kong locals. This is prejudicial to him being a non-refoulement claimant.

(4)  The Board did not give an adequate reason for its Decision.

DISCUSSION

12.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 applicant’s 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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had nothing to say to me.

14.As the applicant was absent at the hearing before the Board, the Board had assessed the evidence before it and found that the applicant’s claims are incredible, the reason being that it was unable to decide the credibility of his case. Below are what the Board said in its Decision at paragraph 52:

“The petitioner did not appear at the hearing. Despite being given opportunity to do so, he has given no evidence to support what he has written in any of his written statements which he has submitted, and while I have carefully considered his written statements and the country information he has provided, this does not persuade me that his particular claims are credible and I am unable therefore to decide on the credibility of his case.”

15.This case falls squarely within the context of the case before the Court of Appeal. In Re Hidayah [2018] HKCA 595, it was held at §15:

“The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. … There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.”

16.In this case, the Board has not given its reasons for its finding of the facts of the applicant’s case. It only says that it was not persuaded that his claims are credible, which is only its opinion without factual reasons to support it. As there was no adverse finding of the facts, the Board should then assess his case on the basis that all applicable grounds are plausible. On this basis, the Court of Appeal held that leave should be given to the applicant to make his application for judicial review of the Board’s Decision.

17.The applicant has therefore raised valid ground to challenge the Board’s Decision.

CONCLUSION

18.I therefore grant leave to the applicant to apply for judicial review of the Board’s Decision by taking out an originating summons within 14 days after this decision in accordance with Order 53, rule 5 of the RHC.

Dated the 18^th day of July 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