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

HCAL 62/2019

[2023] HKCFI 281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 62 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 28 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

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

The applicant

4.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 27 July 2015 and surrendered to the Immigration Department on 5 January 2016.  On 10 June 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 cousin Ilyas.

5.According to the applicant, his cousin was an influential politician and connected with the political group.  His dispute with Ilyas started in December 2014 when Ilyas wanted to seize his family land.  In May 2015, Ilyas built a wall to block the entrance to the applicant’s farmland.  On behalf of his father, the applicant argued and also fought with Ilyas.  The applicant was not injured during the fight.  His subsequent report to the police was of no avail.  The next day, the police officers visited the applicant’s house and arrested his parents.  After they bribed the officers, they were released.  The applicant’s parents informed him about a false accusation against him for a rape case.  Out of fear, the applicant escaped to another village.  On an unknown date, the applicant returned to his home village with the hope that his cousin already forgot about the dispute.  However, he was told by his parents that Ilyas and the police had never stopped looking for him.  Eventually, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 26 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low level of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to him [15]-[24]; and (iii) internal relocation was a viable alternative [25]-[32].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The oral hearing for his appeal was scheduled to be on 20 August 2018 but the applicant was absent from the hearing.  Both the Board and the Director were unable to contact the applicant after several failed attempts [33].  The oral hearing was therefore adjourned for a letter to be sent to the applicant for the explanation of his absence.  Yet, the letter was refused and returned to the Board on 11 September 2018 [34].  As a result, the Board proceeded to assess the applicant’s claim on the available information [35].

9.The Board considered the merits of his claim and found that the alleged past ill-treatments did not amount to anything close to the type of harm that would be a threat to his life, persecution, torture or cruel or inhuman degrading treatment or punishment [37].  It also found that the applicant was able to live in another part of Pakistan unharmed for a certain period of time [38].  It further rejected the applicant’s claimed fear of harm from the false accusation as the evidence was inconsistent and vague [40].

10.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

11.The applicant has filed Form 86 dated 8 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said he is not satisfied with the Immigration’s Decision [the Board’s Decision] and it is still dangerous for him in his country.

DISCUSSION

13.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).

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

15.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.”

16.I note that under section 15 of Schedule 1A of the Ordinance of the 2012 version, the Board had to give the applicant a written notice of the Board’s intention to hear his case in his absence if he failed to turn up at the hearing. Section 15 provides:

Hearing in a party’s absence

(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.

17.The above legislation has been amended and replaced by the 2021 version, under which written notice to the applicant is not required.

18.The Board’s Decision dated 28 November 2018 is bound by section 15 of Schedule 1A of the Ordinance of the 2012 version. However, according to the Board’s Decision, the Director and the Board were unable to contact him. Several attempts had been made to contact him but were in vain. A letter was sent to him in compliance with section 15, but the letter was refused and returned to the Board on 11 September 2018[1]. In the circumstances, I am satisfied that the Board had endeavoured its best to reach the applicant for giving him notice under section 15 of Schedule 1A. It is either due to the applicant’s refusal to accept the Board’s letter or he had moved to live somewhere else without updating the Director or the Board his new address. The applicant has an obligation to keep the Director and the Board up to date as to his address or telephone number for communication under section 37ZA (2) of the Ordinance:

37ZA. Duties of claimant

(2)  A claimant must provide to the Director and (on an appeal) to the Appeal Board—

(a)  the claimant’s residential address in Hong Kong; and

(b)  the claimant’s correspondence address in Hong Kong (if     different from the residential address), and must notify the Director and (on an appeal) the Appeal Board in writing of any change in either of those addresses as soon as practicable after the change.

19.The Court of Appeal in Re: Karamjit Singh [2018] HKCA 460, 2 August 2018 held:

“14. … …It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346….”

20.In the circumstances, the applicant has no reason to complain for not receiving the Board’s letter. Therefore, I hold that section 15 of Schedule 1A of the Ordinance is deemed to have been complied with.

21.There is no valid reason from the applicant to challenge the Board’s Decision.

22.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.

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

CONCLUSION

24.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 2^nd day of February 2023.

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