SEO WAN SHIK v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 436/2018

[2019] HKCFI 433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 436 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and being present / absent in open court;

Leave be granted to the applicant to judicially review the Torture Claims Appeal Board (“the Board”)’s Decision dated 9 March 2018 on the ground that the Board had failed to give any or insufficient reason for dismissing the applicant’s appeal.

Observations for the Applicant:

1.  The applicant is a 56-year-old national of South Korea who last arrived in Hong Kong on 10 December 2009 with permission to remain as a visitor up to 10 March 2010, but he did not depart and instead overstayed until 28 August 2015 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to South Korea, he would be harmed or killed by a loan shark for failing to repay his loan and by the South Korean authorities for suspicion of being a spy for North Korea.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in District Ham Yang, Province Kyoung Nam, South Korea.  After completing secondary school he went on to a university in Seoul during which he participated in various anti-government activities and protests, when on one occasion after attending a demonstration he was arrested by the Government Security Bureau and was detained for five months during which he was tortured.

3.  Upon release he was forced to serve in the military and endured five years of hardship in the military camp until May 1988.  He was then placed in the watch list under the National Security Law and was required to seek approval from the authorities for any overseas trip.

4.  From 1989 onwards he worked in various companies, and got married with three children.  In 2006 he became a managing director of a company in Seoul which dealt in various businesses including health food production.  In 2008 he became acquainted with two Korean businessmen who lived in China and who proposed a business collaboration with him in health food production in China including building a natural health food factory in Beijing, and for which he decided to borrow three billion won from a loan shark in South Korea for his share of the capital for the project.

5.  However, after transferring the money to the businessmen in China, he was unable to contact them again, nor was he able to find them in China despite having reported the matter to the police.  As he was unable to repay his loan to the loan shark, he had to close down his business and filed for bankruptcy, and when the loan shark stated chasing him for repayment of his loan, he tried to stay away from home but when the loan shark was unable to find him at his home, he would threaten his wife that his men would have him killed if he failed to repay his loan.

6.  One day in September 2009 the applicant was informed by a friend working in the Security Bureau of South Korea that one of the Korean businessmen who cheated his money was in fact a spy for North Korea and the money was actually passed to the North Korean Government, and hence the South Korean authorities suspected that he may be involved in a spy ring for North Korea and would soon launch investigation against him.

7.  Fearing threats to his life from both the loan shark and the South Korean authorities, the applicant therefore departed for Hong Kong on 10 December 2009 where he overstayed and later raised his claim for non-refoulement protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 December 2015 and attended screening interview before the Immigration Departemnt with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 22 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the South Korean Government or the loan shark upon his return to South Korea as low due to the low intensity and frequency of past ill-treatment from them, that he was able to leave South Korea without any problem shows that he was not a target of the South Korean authorities, that his problem with the loan shark was a private monetary dispute without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in South Korea with a large population of 49 million people spread across a vast territory of more than 99,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of South Korea away from his home district in large cities such as Busan where it would be difficult if not impossible for the loan shark to locate him.

10.  By a Notice of Further Decision dated 26 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 5 July 2016, but he failed to attend the oral hearing scheduled on 15 November 2017 before the Board without any explanation.  On 9 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  On 19 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely exhibited copies of the previous decisions and other documents from his hearing bundle in his appeal before the Board, as well as some additional evidence regarding his various medical conditions.

13.  As the applicant is unrepresented in his present application, and given the nature of his claim that “life and limb” are in jeopardy and his fundamental human right not to be subjected to torture or persecution is involved, high standards of fairness must be observed by the Board when making its administrative decision regarding the applicant’s appeal: see Secretary for Security v Sakthevel Prabaker (2004) 7 HKCFAR 187, and it is with rigorous examination and anxious scrutiny that I proceeded to consider the reasons given by the Board in dismissing the applicant’s appeal encapsulated in its decision as follows:

“ Failure of the Appellant to appear and present further evidence

46.  On 15 November 2017, the Appellant failed to attend the hearing. I was satisfied under subsection (1) of section 15 of the Schedule and paragraph 11.12 of the Petition Guide that notice had been duly served on the Appellant, and accordingly decided, subject to subsections (2) and (3) of section 15 of the Schedule and paragraphs 11.14 and 11.15 of the Petition Guide, to hear and determine the appeal in his absence.

47.  On 15 November 2017, the Appellant was given written notice of my intention to determine the appeal in his absence and stating that he might submit to the Board, within 7 days, a written explanation of his failure to attend the hearing together with any documentary evidence supporting the explanation. This written notice was sent by post to his last known address.

48.  No written explanation for the Appellant’s absence was received within the time limit. Accordingly, on 12 December 2017, I proceeded to determine the appeal in the absence of the Appellant.

Determination in Absence

49.  As indicated above, after considering the Appellant’s claims as contained in all the material contained in the hearing bundle I decided that the matter could not be dealt with by a paper review, but required an oral hearing. In such circumstances it was for the Appellant to appear at such a hearing and prove his case to the required standard.

50.  The Appellant did not appear at the hearing. He has given no evidence to support what he has written in his NCF, and I am unable therefore to decide on the credibility of case.

51.  It follows that I am unable to estimate what risks, if any, he faces if he is refouled to the Republic of Korea (South Korea), or to decide whether or not he is entitled to non-refoulement under the provisions mentioned above.

52.  His claims therefore must be dismissed.

53.  For the reasons set out above, the Appellant’s appeal fails on all applicable grounds and is dismissed.  The decisions of the respondent of 22 June 2016 and 26 June 2017 are affirmed.”    

14.  In Re Hidayah [2018] HKCA 595, where the applicant appealed against her non-refoulement claim being dismissed by the Board for similar reasons, in allowing her appeal and in granting leave to her to judicially review the Board’s decision on the ground that it had failed to give or had given insufficient reasons for its decision, the Court of Appeal stated in its judgment as follows: 

“ 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. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). 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. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. 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.

16.  We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”

15.  In the present case, as noted above the Board similarly decided the appeal against the applicant because it was unable to determine his credibility due to his failure to attend the hearing, and therefore it was unable to estimate what risk if any he faces if refouled to South Korea or whether he is entitled to non-refoulement protection, but despite having considered all the materials in the hearing bundle supplied for the appeal [20 & 49], no elaboration was made as to why it was unable to determine the credibility of the claim based on the materials and information before it, and in the absence of any adverse findings against the applicant’s credibility, it appears that no analysis or assessment had been conducted either in the decision on the basis that his case was plausible.     

16.  For these reasons I am of the view that it is reasonably arguable that the Board had failed to give any or insufficient reason for dismissing the applicant’s appeal, and accordingly I grant leave to the applicant to judicially review the Board’s decision on this ground.

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