BHS AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2414/2018

[2021] HKCFI 3818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2414 of 2018

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 oral submissions by the Applicants in open court;

Order by Deputy High Court Judge K.W. Lung:

1)         Leave to apply for Judicial Review be granted;

2)         Costs for the attendance only be in the cause, to be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

THE APPLICATION

APPLICATION

1.  The applicants are a family.  The 1^st applicant is the father, the 2^nd applicant, the wife and the 3^rd and 4^th applicants are their sons, respectively born on 24 July 1996 (25 years old) and 30 July 1998 (23 years old).  They are represented by Mr. Rob Connelly, Counsel under the Legal Aid Assistance Scheme.  The instructing solicitors are Messrs. T.H. Koo & Associates.

2.  The applicants’ case relies upon the facts of the 1^st applicant.

3.  This is the applicants’ joint application for leave to apply for judicial review of the Decision dated 12 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

4.  Form 86 for their application was filed on 31 October 2018, which was then amended and filed on 17 November 2021.

The applicant

5.  The applicants are citizens of Sri Lanka.  They entered Hong Kong on strength of their visas around 31 March 2011.  Their visas expired on 14 April 2011.  On 11 April 2011, they approached the Office of the United Nations High Commissioner for Refugees (“UNHCR”) in Hong Kong to seek non-refoulement protection.  On 27 April 2011, they surrendered to the Immigration Department and lodged torture claims on 19 May 2011.

6.  On 29 November 2013, the Director of Immigration (the “Director”) rejected their torture claim application.  On 11 March 2014, they appealed against the Director’s decision to the Board out of time.  On 13 May 2015, the Board refused to extend time for their appeal.  The Board’s decision was set aside by the Court of the First Instance upon judicial review and their appeal was heard before the Board.  They were represented by a duty lawyer before the Board. By the Board’s Decision, the Board dismissed their appeal.  They therefore apply for leave to apply for judicial review the Board’s Decision.

7.  The applicants claim that they will be persecuted, harmed or even killed if they return to Sri Lanka, in particular, by Government Officials and politicians affiliated with the United People’s Freedom Alliance Party (“UPFA”), who had repeatedly attempted to extort money and free food from the 1^st applicant and his family.

8.  Between 2008 and 2010, their enemies had caused serious harm to them.  On 15 February 2008, a group of 30 armed men attacked the 1^st applicant with broken glass and clubs, causing severe injuries to him which required him to be hospitalized for 2 days and forced his family to close down their hotel in Avissawella.  In August 2008, their new business in Thalawathugoda was robbed and they encountered several incidents of threats and extortion.  In September 2010, the 1^st applicant was kidnapped and held for ransom for 2 days until his family was forced to pay a ransom of 2.5 million rupees to secure his release.  In December 2010, they relocated to another part of Sri Lanka where they received threats against the 1^st applicant’s children, forcing them to eventually decide to flee to Hong Kong.  After they had left Sri Lanka, the gangsters attacked the 1^st applicant’s nephew, causing him severe bums.  The gangsters threatened to do the same to them if they returned to Sri Lanka.  In addition, the 1^st applicant and his family face societal discrimination and persecution in Sri Lanka as the 1^st applicant is a member of the Muslim minority.

9.  Before considering their case further, it is convenient for me to set out the unusual features in the proceeding.

Court interpreter for the applicant

10.  The solicitors acting for the applicants wrote to the court and asked for the service of interpreter.  Since this is an ex parte application and the applicant is legally represented, it is rarely necessary for the service of court interpreter.  Counsel informed me that his clients would not give evidence.  The interpreter would assist the solicitor to obtain instructions from clients.  Such service should not be provided by the Judiciary.  The solicitor should bear the cost for his interpreter and it is unnecessary to ask for the court’s leave for such service.  Unless the applicant gives evidence in court, the solicitor should not apply for interpreter service for ex parte hearing.

Non-compliance with Practice Direction - SL3

11.  In breach of para. A (5) of the Practice Direction – SL3, the applicant’s legal representatives have not provided the court with a list of documents, identifying the pages of the exhibits relevant to the application at the filing of the application.

12.  In breach of para. A (9), there is no hearing bundle for the hearing.  Counsel only handed in copies of 3 authorities to the Court at the end of the hearing.  It is the instructing solicitor’s duty to prepare the hearing bundle.  But counsel also has the duty to ensure that the hearing bundle is available before coming to court.

13.  In breach of para. A (10), there was no skeleton argument for the Court, which should be given to the Court 7 clear days before the hearing.  Counsel simply relied on the amended Form 86 for the court’s preparation of the case and for the hearing.

Notice of Appeal – the Board conducted the appeal by way of rehearing

14.  When the Court asked for the Notice of Appeal for the Board, Counsel was surprised that the Court would ask for it as he considered that it would be rare for the court to refer to this document.  Counsel further submitted that the Board heard the appeal by way of re-hearing, therefore it would not be necessary to refer to the Notice of Appeal.  Counsel referred to AM v The Director of Immigration HCAL 102/2012.

15.  I have, in my previous decision in Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director or Immigration [2018] HKCFI 2726, pointed out that this is a misconception of the decision in AM’s case, in which the court did not hold that by re-hearing of the matter, the tribunal can simply ignore the evidence or the findings of the interview before the immigration officer.  The law imposes a duty upon the adjudicator to consider all the evidence and materials, including those before the immigration officer for his decision of the appeal.  At paragraph 19, I said:

“19. In my opinion, the Board should discharge its supervisory duty to consider the applicant’s appeal against the Director’s Decision. The Board may consider the same evidence before the immigration officer. The Board may also consider other evidence as provided under Section 18 (2) of Schedule A of the Ordinance. As to what way the Board should adopt, it is entirely the Board’s discretion. That is to say, whether the Board will re-hear the applicant wholesale or any part or parts of the applicant’s evidence before the immigration officer, which he wants to clarify, it is within his power to do so. But he may have to give his reasons if he is to have a wholesale re-hearing of the evidence because his decision to ignore the evidence given by the applicant to the immigration officer, which he is entitled to consider and rely upon for his determination, will incur extra time and cost.”

16.  The concept of appeal by way of rehearing also appears in Order 59, rule 3(1) of the Rules of the High Court (“RHC”):

“3(1) An appeal to the Court of Appeal shall be by way of rehearing …”

17.  The Court of Appeal will not brush aside the grounds of appeal in the Notice of Appeal.  Rather, it has to resolve the grounds before it comes to its decision.

18.  One must bear in mind that the Board is a statutory creature under the Ordinance.  Its powers are derived from the statutory provisions.  Section 37ZS of the Ordinance provides that the Notice of Appeal must be filed within 14 days after the Director’s decision.  It must be accompanied by a copy of the notice of the decision being appealed against s.37ZS(2).

19.  The Notice of Appeal is in the prescribed form.  Section 2(B) of the Notice of Appeal provides:

“You must set out ALL grounds of your appeal/petition. Please give reasons in support of these grounds – that is, why you disagree with the decision of the immigration officer being appealed/petitioned against. Where appropriate, please refer to the specific paragraphs of the immigration officer’s written decision and/or country of origin information materials relied upon. Give as many details as possible. Use additional sheets of paper if necessary.”

20.  The Board will be unreasonable to brush aside the grounds of appeal in the Notice of Appeal because the appeal is by way of rehearing.  To do so will be unfair to the applicants and the Board would have acted unlawfully.  See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, §5[1]. See also C, KMF, BF v Director of Immigration & Others (2013) 16 HKCFAR 280, per Sir Anthony Mason PJ at §86.[2]

21.  The Court, bearing its supervisory duty, has to refer to the Notice of Appeal in order to understand what happened in the hearing before the adjudicator and whether or not the Board had taken into consideration the grounds of the appeal before it came to its decision.

22.  The matter was adjourned for 30 minutes for Counsel to obtain the Notice of Appeal.  As it disclosed, the applicant had raised the issues:

“During the second attack, the Claimant was specifically instructed by a police officer himself not to lodge a complaint as the gangsters had connection with a powerful local politician. The police officer even confirmed that the raid was organized by gangsters with close ties with the government. The assertion by a policeman that the gangsters had close connection with powerful political figure should be strong enough indication to the Claimant that local politician may be behind the attack.”

23.  The above facts seem to be not mentioned in the Director’s Decision dated 14 June 2016 (the “Director’s Decision”), against which the applicants appealed to the Board.  In the Director’s Decision, it was mentioned that the 1^st applicant said that the underworld gangsters were affiliated with the politician involving in illegal activities and killing people and in his opinion, the police force was controlled or influenced by the politicians.  These are simply his impression without concrete evidence in support of them.  See paragraph 27 (a) & (b) of the Director’s Decision.  The immigration officer had not pursued the matter further by asking the 1^st applicant to state the evidence in support of the facts.

24.  In the Board’s Decision, the Board did not deal with those facts.  It will be incumbent upon the Board to enquire what evidence does the 1^st applicant have to support his impression.  This is important as it goes to the credibility of the applicant’s evidence.

DISCUSSION

25.  It will be quite apparent that the Board had not treated the applicants fairly in the hearing.  It had not considered the issues mentioned in paragraph 22 above and find the facts before coming to its decision.  I consider that these facts are important as state protection will be important consideration for the Board.  I shall state another instance where I consider that the Board appears to have not treated the 1^st applicant fairly.

26.  In paragraph 17 of the Board’s Decision, the adjudicator commented that the 1^st applicant’s evidence was unreliable.  He relied upon the following rhetoric questions:

“Why the Appellants left Sir Lanka, why they chose Hong Kong, why in the absence of severe injury yet they would travel 4000 km to such a far-away place as Hong Kong, why they chose to overstay illegally here, why they had not raised any claim over their alleged ‘fears for their lives’ for 1.5 months (31 March 2011 to 19 May 2011) despite ample opportunities to do so, and for whatever true purpose they decided to travel to distant Hong Kong and to overstay, the answers to all these matters they themselves would naturally know, …”

27.  It seems that the Board had never put those questions to the 1^st applicant for his explanation.  It then came to the conclusion that the 1^st applicant was dishonest.

28.  To say that the applicants had not raised any claim over their alleged fears for their lives for 1.5 months is not correct.  They arrived in Hong Kong on 31 March 2011.  They raised this issue to the UNHCR for asylum on 11 April 2011.  The Immigration Department has the discretion not to entertain their application for asylum until the expiration of their visas on 14 April 2011.  See CH v Director of Immigration CACV 59/2010, 18 April 2011 at §§15 & 46.  On 27 April 2011, they surrendered to the Immigration Department and lodged torture claims on 19 May 2011.  They delay is only 13 days (from 14 April to 27 April).  It would be too harsh for the Board to say that the applicants were dishonest for a delay of 13 days to seek torture claim protection.

29.  For the reasons above, I consider that the applicants have a realistic prospect of success in their intended application for judicial review of the Board’s Decision.

DISPOSITION

30.  I therefore grant leave to the applicants to apply for judicial review of the Board’s Decision.  As they are legally represented, I trust that the lawyers will comply with Order 53, rule 5 of the RHC to proceed further.

31.  Leave had been granted to the applicants to amend Form 86.  It is unnecessary to make another order.

32.  The usual order for the costs of this application should be in the cause.  However, in view of the blatant non-compliance of the Practice Direction and non-preparation for the hearing, I order that the costs for the preparation of the hearing before me, including the costs for any documents prepared, should be disallowed.  Only the costs for the attendance will be allowed, to be taxed in accordance with the Legal Aid Regulations.

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

[1]  5.         The determination by the Secretary, in accordance with the policy, of a potential deportee’s claim that he would be in danger of being subjected to torture if deported to the country concerned must be made fairly.  If not, the Secretary would have acted unlawfully.  This is not disputed by the Secretary.

[2]  86.      In the light of the nature of the Director’s decision and its drastic consequences for the appellants, it follows from Prabakar in particular and other cases mentioned that the Court is bound to:

“subject the [Director’s] determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met ….  If the courts decide that they have not been met, the determination will be held to have been made unlawfully”, in the words of Li CJ in Prabakar .”