Hossain Anowar v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

HCAL 1115/2019

[2022] HKCFI 2971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1115 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 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.The applicant applies for leave to apply for judicial review of the Decision dated 18 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time. The court sent a letter to the applicant and invited him to make further submissions in order to dispense with hearing in court. The letter further said that if he takes the view that it is not possible to make written submissions in place of oral hearing, he should so inform the court, stating his reasons why this is the case and if he does not respond to the letter within 7 days, the court will proceed to consider his application on paper. The written decision will be sent to the applicant in due course.

3.The applicant did not respond to the court’s letter.

4.Under Order 53 rule 3(3) of the RHC, it provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to his application. I therefore proceed to consider his application on paper.

5.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

6.The applicant is a national of India. He entered Hong Kong on 22 December 2015 as a visitor and was allowed to stay until 5 January 2016. He did not depart and had overstayed since 6 January 2016. On 6 January 2016, he surrendered to the Immigration Department. On 9 August 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his three uncles and their sons, as well as the people of All India Trinamool Congress (“TMC”) due to a land dispute.

7.According to the applicant, his father purchased a piece of land from his grandfather long time ago. Since March 2013, the three uncles, who were TMC members, had been attempting to occupy the land. One day, his father was assaulted by the uncles. On the same date, the applicant saw that around 15 to 20 people of the TMC marched to his house. Further, the uncles and their TMC friends came to threaten the applicant’s family for the land. Thereafter, the applicant was also attacked by some men who claimed to be the TMC members. The applicant decided to report the attack to the police. However, on their way to the police station, he and his father were stopped and threatened by the TMC members and his uncles. Two weeks later, a shooting incident happened while the applicant was farming on the land. While the applicant was not injured, he escaped to Gurgaon but was chased down by his uncles’ people. The applicant then stayed in Main Delhi from 2013 to 2014. When he returned to his home village, he encountered another attack from his uncles. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 11 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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

c.  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

d.  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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm from his uncles and the TMC people was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[17]; (ii) state protection would be available to him [18]-[19]; and (iii) internal relocation was a viable alternative [20].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 17 January 2019, the Board conducted an oral hearing for his appeal, during which he gave evidence.

11.Having considered the evidence, the Board concluded that the applicant’s claim lacked credibility [70]. In particular, the Board found that the applicant was inconsistent in relation to the details of the attack against his father in 2013 [71]-[75]. He was also inconsistent as to how long he stayed in his friend’s place the evening after his father was attacked [76]. He also claimed to have forgotten when he was attacked after they assaulted his father, whether it was the next day or a few days later [77]. He did not produce any medical evidence [78]. In addition, he was inconsistent as to the details of the attack on their way to the police station and of the shooting incident on their farmland [79]-[81]. Further, the applicant was inconsistent as to the events happened after he returned to his home village from Main Delhi [82]-[83]. Meanwhile, the applicant had failed to provide any objective evidence, such as medical reports, police reports or those which could support his uncles’ political affiliation with the TMC.

12.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 25 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.In support of his application, the applicant had filed an affirmation and enclosed a statement to Form 86, in which he set out the grounds. I shall summarize the grounds below.

(1)  The Director had failed to give proper weight to state acquiescence and the public officers failed to provide reasonable protection to him. Although the Director had referred to the country of origin information (“COI”), he did not give due weight to the evidence in his favour. This case involves the state does not provide sufficient protection for its citizens. Corruption and incompetence of the administration in his country is very serious and there are reports on this aspect. The Director applied the COI in an unfair manner so as to suit his pre-conceived conclusion.

(2)  The adjudicator failed to make sufficient enquiries and she failed to take into account his situation of not being able to obtain all the documents. She also failed to give him sufficient chance to obtain the documents. Yet she held that he was unable to give credible evidence to prove his case.

DISCUSSION

15.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.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.”

18.Those grounds in paragraph 14 above are not valid reasons to challenge the Board’s Decision. Ground (1) is only his bare assertions or opinions without any evidence in support. Ground (2) is also his bare assertion as up to this stage, he has not been able to disclose what documents he needs to prove his case. From the findings of the Board, it seems that those inconsistences in his evidence are not a matter of documentary evidence.

19.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.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 27^th day of September 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