Ehsan Ahmed v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 32/2019

[2023] HKCFI 357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 32 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 27 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”), the Court will deal with his application 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 Pakistan. He entered Hong Kong illegally on 6 June 2013 and was arrested by the police for illegal remaining on 8 June 2013. On 11 June 2013, he made a request for asylum to the UNHCR. Later, on 3 March 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his cousins, Riaz and Ilyas, for a land dispute.

5.The land dispute arose in 2012 when the cousins approached the applicant and his father for a swap of their land, with a threat that if they refused to comply, they would be killed. The applicant’s report to the police was of no avail. A few days later, when the applicant’s father went to the farmland, he was attacked by the cousins. Later in late 2012 or early 2013, the cousins visited the applicant’s house, armed with weapons and threatened to kill them if they refused to swap the land. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of Notice of Decision dated 14 December 2015 by the Director (the “Director’s Decision”).

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) absence of ill-treatments indicated no real or foreseeable risk of harm [12]; (ii) state protection would be available to him [13]; and (iii) internal relocation was a viable alternative [14].

8.For reasons set out in the Notice of Further Decision dated 16 June 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

9.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

10.The applicant appealed the Director’s Decisions to the Board. On 10 May 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [11].

11.The Board noticed that the applicant provided inconsistent accounts as to the attack of his father [31]. During the hearing, the applicant stated that the long lapse of time had prevented him from recollecting these events [32]-[33]. The Board also noted that the cousins would not get the land even if they killed the applicant as he was not the owner of the land and he confirmed that his father had yet to transfer the land to him [34]. Further, when asked whether his brother would inherit the disputed land, the applicant replied that his brother had already taken a piece of land [35]. Thereafter, the applicant indicated that he did not wish to answer further questions. The Board warned the applicant of the negative consequence against his credibility if he decided not to give further evidence [36].

12.The Board found that much of the applicant’s evidence were based on hearsay information [41]. His evidence was also inherently inconsistent [42]. In absence of his oral evidence, the Board was unable to determine the general credibility of his claim [43]. However, the Board was of the view that, even taking the applicant’s evidence at its face value, the core of his claim was inherently implausible and lacked credibility [44]. In this light, 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 4 January 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant only said that he was not satisfied with the Board’s Decision but did not set out any specific ground.

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.The Board had assessed his case and found at paragraphs 43 and 44 of the Board’s Decision:

“43. In the absence of oral evidence from the Claimant, the Board is unable to determine the issues relating to his general credibility. In the circumstances, the Board is unable to determine which, if any, of the past events which the Claimant says took place actually, occurred.

44. Even if the Claimant’s evidence is taken at face value, the core of the Claimant’s case is inherently implausible and lacking in credibility.”

19.The Board’s finding of being “unable to determine the issues relating to his general credibility …” was an issue of comments by the Court of Appeal in Re Hidayah [2018] HKCA 595 §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. … . 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.”

20.Where the applicant refused or elected not to answer questions for clarification, it is open to the Board to determine the credibility of the evidence, relying on section 37ZA or the Ordinance, which imposes an obligation on the applicant to make prompt and full disclosure of all material facts in support of the claim. His refusal to do so without good reasons is a contravention of the statutory provision. In Sarup Singh v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCFI 1336, it was held:

“16. As the applicant refused to answer the Board’s questions. The adjudicator had told him the issues that he wanted to clarify with him. The Board was entitled to assess his evidence on that basis. On the issue of whether the Board can draw adverse inference against the applicant, resulting in discrediting his evidence as a whole under the higher standards of fairness basis, the following authorities have to be taken into consideration.

17. 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”

18. 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 gives no exemption to the applicant for the compliance of the Ordinance.”

21.It is obvious that the Board had found the applicant’s evidence not believable in this case. Since the applicant had taken his choice not to answer the Board’s questions for clarification, the applicant cannot blame the Board’s adverse findings against him.

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 21^st 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