Bougatef Walid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3796/2019

[2023] HKCFI 2131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3796 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:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 10 October 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 date was fixed and the applicant appeared before the Court on 31 May 2023.

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 Tunisia.  He last entered Hong Kong on 6 February 2017 under a false identity and was permitted to remain until 8 March 2017.  He did not depart and had overstayed since 9 March 2017.  On 12 September 2017, he intended to depart from the Hong Kong International Airport but was refused departure.  He was referred to the Immigration Department.  On 15 September 2017, he was released on recognizance.  Thereafter, on 3 January 2018, he was arrested by the Immigration Department.  On 1 February 2018, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Nahda Party, alias, the Ennahda Party (“EP”), due to his father’s political affiliation of a rival political party, Tunisia Appeal Party (“TAP”).

5.According to the applicant, his father was the local leader and representative of the TAP.  In around summer 1993, his father and uncle were running for the position of local administrator on behalf of the TAP.  This was when the dispute started.  The EP wanted to take over the power from the TAP. Upon knowing the applicant’s father’s intention to run for that position, the members from the EP visited the applicant’s house and threatened his father with guns. To avoid the threats, the applicant’s family moved to Sfax.  In winter 1995, his father encountered a car accident, in which he lost his kidney and also had his left leg amputated.  He stepped down the leadership position after the accident.

6.In 1995 or 1996, the applicant’s father was ambushed by some unknown men.  However, the police took the applicant, his father and his brother into custody together with the attackers.  They were detained in the police station, during which they were beaten up with sticks.  They were refused visits as well.  Subsequently, at the bribery of their relative, they were released after getting fined for the charge of assault before the court.

7.On 2 February 1997, the applicant was informed by his father of his uncle’s death.  A year later, there were occasions when the applicant was followed and almost crashed by cars in two incidents.  In December 1998, the applicant was kidnapped and beaten up.  The unknown men threatened to kill him and his family if his father did not leave the TAP.  In around 1999, the applicant was sent to live with his grandparents.  Yet, he learnt from his father that the EP members were still harassing his father. 

8.In 2001, the applicant left Tunisia and had stayed in Dubai and Australia.  Thereafter, the applicant had moved to different countries following his wife.  During this period, he learnt from his father that the EP members forcefully occupied his brother’s shop.  In around 2011 when the applicant was in Australia, Tunisia was under the revolution of “Arabic Spring” and he learnt that his father had been attacked by different unknown people on street. 

9.In the end of 2015 and early 2016, the applicant returned to Tunisia. His father told him that they still received phone calls of threats from different unknown people.  The threats continued after the applicant arrived in Hong Kong.  As a result, the applicant decided to seek protection in Hong Kong.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 21 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

(2)   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”);

(3)   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

(4)   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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[15]; (ii) state protection would be available to him [16]-[17]; and (iii) internal relocation was a viable option [18]-[21].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board.  The oral hearing for his appeal was fixed to be on 10 September 2019.  However, the applicant was absent from the hearing.  On the date of the hearing, the Board gave notice to the applicant, warning him of the consequence of his absence of the oral hearing and inviting him to provide written explanation of his failure to attend the hearing within 7 days, failing which, the Board would proceed to determine his appeal on papers.  As the applicant failed to reply to the said letter which was also not returned to the Board, the Board proceeded to determine his appeal on the available information [7]-[9].

13.The Board recapped the applicant’s claim and considered the country of origin information (“COI”) [13]-[28].  The Board noted that there were aspects in the applicant’s claim that required clarifications, such as why the EP members would target him instead of his father and why state protection would not be available to him if TAP was the ruling party [32].  Since the applicant did not attend the oral hearing to clarify the matters, the Board did not make any findings about the genuineness of the applicant’s claims in relation to his father’s political activities and the alleged kidnap incident and assault in 1999 [33]. 

14.In conclusion, the Board found that the applicant had failed to attend the oral hearing and did not seize the opportunity to explain the basis of his claims.  It found that the applicant had not made a genuine effort to substantiate his story and thus his claim that members of the EP would seek to harm him upon his refoulement was not credible as he had established no basis for such a claim [36].   

15.On the sole basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

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

16.The applicant has filed Form 86 dated 19 December 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation in support of his application, the applicant said he does not agree with the Board’s Decision and his life is in danger in his country.

DISCUSSION

18.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).

19.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 appeared before the Board whereas in the Board’s Decision it was recorded that he was absent and due notice had been given to him to explain his absence on that day. Yet, he did not reply. He said that he would leave this matter to the Court. However, he reiterated that he would be kill if he returned to his country.

20.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.”

21.The Board, for the reason of the applicant’s absence from the hearing, found that assessment of the credibility of these claims is a difficult exercise which in my view is unnecessary [33].”. However, at paragraph 38 of the Board’s Decision, the Board said:

“I have found that the Appellant’s claims that should he return to Tunisia he will face serious harm amounting to persecution at the hands of members of the Nahda or other unknown people who had previously threatened his father are not credible, and that he has not established that there are ‘substantial grounds’ which support the conclusion that he will face a real risk of ill-treatment as claimed if he were to return to Tunisia.”

22.On the face of it, these two findings appear to be inconsistent with each other. However, I consider that they can co-exist because without finding whether the facts stated by the applicant are genuine because the Board was unable to put questions to him for verification, the Board is still entitled to say that his story is not credible because it is not proved or implausible to believe.

23.The Court of Appeal in Re Gurpreet Singh [2023] HKCA 590, Hon Chu VP and Barma JA, 27 April 2023 §9 held, quoting the reasons of the court below:

“22. 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). 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.

23.  I therefore consider that it is legitimate for the Board to draw adverse inference against the applicant’s credibility on the facts of his case.”

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

CONCLUSION

25.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 24^th day of August 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