MOHAMMED NASIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 695/2019

[2023] HKCFI 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 695 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;

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

2.   The application 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 28 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 12 March 2019 is late.^[1] I shall deal with this issue below.

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 India.  He last entered Hong Kong illegally in March 2007.  On 13 November 2007, he was arrested by the Hong Kong police for illegal remaining.  On 7 December 2007, he lodged a torture claim.  His torture claim was rejected on 14 October 2011 and the subsequent petition was also dismissed on 13 December 2011.  By way of the written signification dated 22 October 2013, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Communist Party of India (Marxist) (“CPM”) because of his involvement in the conflict happened in October 2006 between members of CPM and members of the Indian National Congress (“INC”).

5.  According to the applicant, he joined the INC as an ordinary member in 2003 and had been assisting the councilor for office work and promotional activities.  Prior to 2007, he had been traveling back and forth between India and Hong Kong for business purpose.  In October 2006, during the councilor election, the INC was competing against the CPM.  On the date of the election, the members of the INC and those of the CPM got into a fight, during which the brother of the CPM councilor was killed.  The applicant was also injured.  The fight was later dispersed by the police but they did not conduct the investigation.  Around two weeks after the election, some CPM members were enquiring the whereabouts of the INC members in the applicant’s village.  He believed that they were seeking to take revenge.  Later, the applicant was abducted by the CPM members.  He was detained and ill-treated by the CPM members.  Despite that the applicant escaped successfully, he realized those who kidnapped him had located him while he stayed in another village.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 10 of the Notice of Decision dated 13 January 2017 by the Director (the “Director’s Decision”). 

The Director’s Decision

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

a.  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”);

b.  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

c.  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 Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) there was no evidence that he was personally targeted by the CPM [17]; (ii) the behaviors of the CPM members did not indicate a real intention to harm or even kill him [18]; (iii) the ill-treatments did not attain a minimum level of severity [19]; (iv) any possible arrest against him by the Indian police was within the normal course of actions and there was no indication that his right to fair trial would be infringed [21]; (v) state protection would be available to him [22]-[24]; and (vi) internal relocation was a viable alternative [25]-[31].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  An oral hearing for his appeal was scheduled to be on 10 November 2017.  However, the applicant failed to attend the hearing.  As a result, the Board proceeded to consider the applicant’s appeal on paper [3].

9.  The Board recapped the applicant’s claim and his personal backgrounds [4]-[19].  It considered that, while the applicant feared a risk of harm from the CPM, the political scene in West Bengal and in Kolkata had changed dramatically since the events that happened in 2006 [21].  It further considered that the current ruling party was not CPM anymore as shown in the country of origin information (“COI”) and that the CPM had lost its influence [24]-[29].

10.  In assessing the applicant’s credibility, the Board noted that (i) the applicant could not be contacted by either the Director or the Board and he did not inform the Director or the Board about his change of telephone number and of the address [33]; and (ii) his evidence in the non-refoulement claim form was not honest as he insisted that the CPM was still the ruling party even in 2016 [35]-[41].  It therefore found that the applicant was not a credible witness [41].

11.  As a result, as the applicant’s only fear of harm was from the CPM which he claimed to be the ruling party, and since the events had lapsed for around 11 years and the CPM was no longer a ruling party, the Board found that his non-refoulement claim was not substantiated [44]-[48].  In addition, the Board referred to the COI cited by the Director and found that state protection would be available to him [49].

12.  For the above reasons, 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 12 March 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant did not set out any specific ground.

DISCUSSION

15.  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 for the applicant to file Form 86 is 28 September 2018.[2] The delay is about five and a half months. However, I shall first consider the merits of the applicant’s case.

16.  According to the Board, the applicant failed to appear for the hearing. paragraph 3 of the Board’s Decision reads:

“3. … … Notice of hearing was sent to the Petitioner at the address given to the Director on the 7 September 2017. The Petitioner failed to appear for the hearing. This Decision is made based on these documents submitted by the Petitioner.”

17.  It seems that the Board did not give a written notice of the Board’s intention to hear the case in his absence pursuant to section 15 of Schedule 1A of the Ordinance of 2012 version, which provides:

Hearing in a party’s absence

(1)  If a party to an appeal fails to attend a hearing, either in person or by a legal representative, the Appeal Board, on proof that the party has been served a notice of the hearing under section 13 of this Schedule, may proceed to hear the appeal in the absence of the party and, subject to subsections (2) and (3), determine the appeal.

(2)  Before proceeding to determine an appeal after hearing the appeal in the absence of a party, the Appeal Board must—

(a)  give the party written notice of the Board’s intention to do so; and

(b)  state that the party may submit to the Board, within 7 days after the notice is given, a written explanation of the party’s failure to attend the hearing together with any documentary evidence supporting the explanation.

(3)  If the Appeal Board—

(a)  has not received the party’s written explanation together with supporting documentary evidence (if any) within the period specified in subsection (2)(b); or

(b)  is not satisfied with the party’s written explanation or supporting documentary evidence, the Board may determine the appeal by making a decision under section 23(1) of this Schedule despite the party’s absence at the hearing.

18.  The above section was amended in 2021. The new version dispenses with written notice to the applicant:

Claimant’s absence from hearing

(1)  If a claimant does not attend a hearing in person, irrespective of whether the claimant is represented at the hearing by a legal representative, the Appeal Board may hear the appeal in the absence of the claimant.

(2)  If a claimant referred to in subsection (1) wishes the Appeal Board to fix another hearing date for the appeal, the claimant must, within 3 working days after the date of the hearing, submit a written request to the Appeal Board to fix another hearing date.

(3)  The request must contain a written explanation of the claimant’s absence from the hearing together with all available evidence supporting the explanation.

(4)  The Appeal Board must proceed to determine the appeal by making a decision under section 23(1) of this Schedule if—

(a)  no request is made under subsection (2); or

(b)  where a request is made under subsection (2), the Board is not satisfied, on the basis of the written explanation and supporting evidence submitted with the request, that the claimant—

(i)   had exercised all due diligence to attend the hearing; but

(ii)  was absent from the hearing because of circumstances beyond the claimant’s control.

19.  The Board’s Decision is dated 28 June 2019, which means it was bound by section 15 of the 2012 version. The new version does not provide any retrospective effect. Therefore, the Board is in breach of section 15 of the Ordinance of 2012 version, a procedural irregularity.

20.  However, paragraph 33 of the Board’s Decision set out the reasons why the Board was unable to have contact with the applicant.

“33. The Petitioner could not be contacted by the Director or by the Secretariat of the Board when attempts were made to send him the Notice of Hearing for 10 November 2017. The telephone number of the Petitioner was also disconnected and the Petitioner did not notify the Director nor the Secretariat of the Board of the change of his telephone number or his address as he ought.”

21.  It is clear that even if the Board’s Decision is set aside and the appeal is to be heard again, there is simple no way for the Board to implement the law by giving notice to the applicant for his explanation for not attending the hearing. In the circumstances, I am satisfied that the Board had endeavoured its best to reach the applicant for giving him notice under section 15 of Schedule 1A. It is either due to the applicant’s refusal to accept the Board’s letter or he had moved to live somewhere else without updating the Director or the Board his new address. The applicant has an obligation to keep the Director and the Board up to date as to his address or telephone number for communication. The Court of Appeal in Re: Karamjit Singh [2018] HKCA 460, 2 August 2018 held:

“14. … …It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346….”

22.  The Board is correct to have taken this factor into consideration when considering his credibility. Section 37ZD of the Ordinance provides for behaviour of the applicant, which the Board is entitled to take into consideration when considering his credibility.

37ZD.Credibility of claimant

(1)  In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

(a)  any behaviour that the immigration officer or the Appeal Board considers is designed to, or is likely to be designed to—

(iii)  obstruct or delay the handling or determination of the claimant’s torture claim;

23.  The applicant, therefore, has no reason to complain for not receiving the Board’s letter. I hold that section 15 of Schedule 1A of the Ordinance is deemed to have been complied with.

24.  There is no valid reason from the applicant to challenge the Board’s Decision.

25.  There is no realistic chance of success of the applicant’s intended application for judicial review.

CONCLUSION

26.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, the applicant’s application is dismissed.

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