Burnashyov Stanislav v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1330/2019

[2024] HKCFI 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1330 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:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. This issue will be dealt with below.

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 for the applicant to appear before the Court on 5 June 2023. However, the applicant was absent without prior notice to the Court. His application is therefore dealt with on paper.

The applicant

3.The applicant is a national of Kazakhstan and Russia.  He arrived in Hong Kong on 9 October 2015 as a visitor but he did not depart upon the stipulated deadline.  He was subsequently arrested by the police on 24 October 2015 for overstaying and he raised a non-refoulement claim shortly thereafter on 26 October 2015.  His claim is on the basis that he will be harmed or killed by the Kazakhstand or Russian police and government due to his several anti-government articles and his escape from the police.

4.In short, the applicant was a part-time writer for a newspaper called the Caravan from 2009 to around 2015.  He wrote articles criticizing the Kazakhstan government, such as insufficient resources for students and the president of Kazakhstan extending his tenure since 1991.  Despite his superior requesting him to cease writing about politics, he did not desist.  In or around March 2015, he wrote an article regarding the dominance of the ruling party, Nur Otan, which aimed to expose the corruption within the party.  Two weeks after the publication of his article, he was kidnapped by some men purportedly working for the government and brought to a police station.  He was beaten up and interrogated by the police for a week before he escaped through a window in the prison toilet.  He hid at his friend’s home and decided to seek refuge in Russia in August 2015.  Upon his arrival in St Petersburg, he stayed at another friend’s house.  However, he believed the Russian government was also after him as policemen had visited his friend’s house while in St Petersburg. In fear, he decided to leave Russia and departed for Mainland China; and subsequently for Hong Kong.  Details of his claim are set out at [8] – [22] of the Notice of Decision dated 17 January 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the factual matrices of his claim were having inconsistencies and incredible allegations, such as the failure to produce the alleged anti-government articles, and the incoherent account of events of how he escaped Kazakhstan and Russia in order to seek asylum [39]; (ii) his assertion of the Russian police chasing him was unsupported by any concrete information [40]; (iii) despite the data from country of origin information (“COI”) indicating there were shortcomings in the Kazakhstan government, there was nothing to show he could not seek assistance from Kazakhstan authorities of more prominent positions, thus enabling him to be protected by the state [42] – [44]; and (iv) internal relocation was also a viable option [45] and [46].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  The oral hearing for his appeal was scheduled on 27 September 2018 but the applicant failed to attend.  When the secretariat of the Board phoned him on the same date, he informed the Board he was unwell.   He was advised that a reply in writing regarding his illness together with supporting medical certificate should be sent to the Board.  The Board further gave notice to the applicant 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. However, no response was forthcoming and the Board’s letter was also not returned by the post office.  In the circumstances, the Board proceeded to determine his appeal on the available information [41] – [43].

8.The Board recapped the applicant’s claim [8] – [36] and considered the COI relevant to his claim [44] – [50].  In essence, the Board was unable to accept the veracity of the applicant’s claim as the same could not be tested due to his absence at the hearing [51].  Likewise, the Board was not satisfied that his claim regarding his experiences in Kazakhstan are truthful, including his alleged employment with the newspaper Caravan, his arrest by government agencies of Kazakhstan, and ultimately his arrival to Hong Kong to seek non-refoulement protection [52].  In light of the above findings against the factual matrices of the applicant’s claim, the Board held there were no substantial grounds or real risk of harm that he will be subjected to torture or persecution if he is refouled [53].  It further found that each of the applicable grounds under non-refoulement protection was unsubstantiated [54] – [69].

9.In the circumstances, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

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

11.In his affirmation in support of his application, the applicant said he is not in possession of any documents for the time being and will be in a position to provide documents upon his release.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 29 February 2019. The delay is more than two and a half months. The applicant has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

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.The Board, for the reason of the applicant’s absence from the hearing, found that:

“51. …His failure to attend the hearing and provide oral evidence to the Board means that I have been denied the ability to question him about his claims and to test their veracity. I cannot, therefore, be satisfied that the Appellant left Kazakhstan/Russia and cannot return for the reasons he has claimed.

52. … I am not satisfied that any of his claims regarding his experience in Kazakhstan are truthful. I am not satisfied that he had worked for Karavan newspaper at any time or that he published articles critical of the newspaper or that he was threatened, arrested or harmed by the police or any other of the security agencies of Kazakhstan. Nor am I satisfied on the basis of the evidence that he left Kazakhstan or Russia by bribing officials or that he fled from those countries. Nor am I satisfied that he came to Hong Kong and sought protection as a result of any of the reasons he has claimed.

53. …I am not satisfied that he had or will have an adverse political profile upon his return to Kazakhstan or Russia, such that there are substantial or strong grounds or a real chance or a real risk that he will be subjected to torture, CIDTP/torture, a risk to his life or persecution from the authorities of Russia or Kazakhstan or any other organizations or individuals in those countries….”

17.The Board was entitled to make the above findings. 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.’”

18.The reason in support of his application under paragraph 11 does not assist him. There is no reason from the applicant for his absence before the Board and this Court. This is tantamount to refusing to give evidence to the Board.

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

CONCLUSION

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

Dated the 6^th day of August 2024

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