ONG SIU SIN KEVIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 33/2018

[2019] HKCFI 2481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 33 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of Singapore who arrived in Hong Kong on 13 October 2001 as a visitor and upon subsequently marrying a Hong Kong resident, he was permitted to remain as a dependent until their divorce in 2008, and later when he was arrested by police for fraud for which he was subsequently convicted and sentenced to imprisonment of 4 ½ years, and upon his release from prison a deportation order was issued against him by the Immigration Department on 27 August 2014, he then raised a non-refoulement claim for protection on the basis that if he returned to Singapore he would be harmed or killed by his cousin who was said to be an Assistant Director of Prosecutions for trying to expose a crime committed by his cousin of having stolen millions of dollars from his grandmother’s account.  He was subsequently released on recognizance pending the determination of his claim.

2.  According to the information set out in his claim, the Applicant was born and raised in Singapore and claimed to have come from a prominent family which owned substantial wealth and assets including equities in a company founded by his maternal great grandfather now listed in the Singapore Stock Exchange.  He himself had received tertiary education with a degree in quantity surveying in Singapore and then a law degree in the United Kingdom,and upon returning to Singapore he worked in quantity surveying, marketing, investment banking and internet solution provider.

3.  He also became interested in politics in Singapore by participating in rallies and protests organized by the Workers’ Party and the Singapore Democratic Party against the ruling party People’s Action Party (“PAP”) led by the Lee family, of which he had frequently criticized in the website of his company.

4.  One of his targets was his own cousin Christopher Ong (“Christopher”), an assistant Director of Prosecutions whom he had criticized for abuse of power in his office,but when he discovered evidence that Christopher together with his parents had stolen millions of dollars from his grandmother’s accounts, and after having made a report to the Corrupt Practices Investigation Bureau, he was arrested by officers of the Internal Security Department (“ISR”) whom he suspected were under the influence of his cousin, when he was detained for several days during which he was beaten with all sorts of objects until he lost conscious and was admitted to hospital where he was found to have fractures all over his body.

5.  Upon his eventual discharge from the hospital and his release on bail, he was advised by his parents to save his own life by leaving Singapore, and after handing over all his incriminating evidence to Christopher and with a stern warning from him that he would be killed should he dare to return to Singapore, the Applicant departed on 13 October 2001 for Hong Kong.

6.  After settling in Hong Kong, he kept a low profile and tried to start some business,and in 2004 he married a Hong Kong resident and applied for a dependent visa in order to remain in Hong Kong.

7.  His application for the dependent visa was however terminated when he and his wife were divorced in 2008, and he was later arrested by police for fraud and was subsequently convicted and sentenced to prison for 4 ½ years.  Upon his discharge from prison on 30 August 2014, he was referred to the Immigration Department which then issued a deportation order against him, and on 9 September 2014 he raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 November 2014 with legal representation from the Duty Lawyer Services (“DLS”), but after one shortened first screening interview before the Immigration Department he failed to attend any of the follow-up interviews due to various reasons, and in lieu he provided some answers to a list of questions raised by the Department.

8.  By a Notice of Decision dated 9 December 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 found serious issue with his credibility due to his failure to provide those supporting documents which he claimed to be able to despite being given more than one year and was legally represented at all material times, as well as his refusal or failure to answer many of the questions raised of his claim without good reasons or reasonable excuse and after failing to attend many of the scheduled screening interviews and in the absence of any reliable independent evidence in support that there were no substantial grounds to believe that his claimed risk of harm upon his return to Singapore would materialize, and that in any event in the absence of any official or state involvement in the alleged actions of Christopher that reliable and objective Country of Origin Information (“COI”) show that state or police protection would be available to the Applicant if needed aswell as a reliable legal and judicial system to protect his rights should he return to Singapore.

10.  By a Notice of Further Decision dated 18 November 2016 the Director again rejected the Applicant’s claim upon receiving from his lawyer from DLS and considering additional representations and materials 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 15 December 2015, and for which and after several adjourned hearings when he failed to appear that he eventually attended an oral hearing on 27 January 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 26 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found the accounts given by the Applicant in his NCF and in his evidence as to the reasons for seeking non-refoulement protection in Hong Kong unconvincing and lacking in credibility, which was further undermined by the fact that it was not until nearly 13 years after he had arrived in Hong Kong and only after a deportation order was made against him that he chose to apply for non-refoulement protection, and that in any event COI indicated that reasonable state protection in Singapore would be available to the Applicant with his fundamental rights protected by the law and that the authorities would take action against offenders of the law despite the fact that they may be senior public officials, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 8 January 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) that the decision of the Board is unjust as it failed to take into consideration that the Applicant does not have his passport nor is he able to obtain a new passport to prove his identity and obtain crucial documentary evidence to prove his claim;

 (2) as such the Applicant had from the very beginning been put in a position where his torture claim and subsequent appeal would be insurmountable and impossible to achieve success.  

14.  The Applicant did not request for any oral hearing for his application, and hence it was dealt with in his absence and on paper.  I propose to first deal with his complaint under Ground (2) as it seems to me just some bare and vague assertion without any particulars or specifics or elaborations by him, and the fact that he had had legal representation throughout his process before the Director and the Board that in the absence of any error of law or procedural unfairness in the process being clearly and properly identified by him, I do not find any basis or merit in this complaint of his, nor do I find it reasonably arguable for his intended challenge.

15.  As for his complaint under Ground (1), which clearly involves the central issue of his credibility, of which the Board made the following findings in its decision:

“ 61. The entire case for the Claimant rests on bare assertions of the Claimant himself without any cogent evidence in support whatsoever. The Claimant himself is well aware of his duty to substantiate his claim by providing to the Director and to the Board all information relevant to the claim and making prompt (emphasis mine) and full disclosure of all material facts in support of the claim, including any document supporting those facts. He acknowledged as such during the screening interview of 27 May 2015 by saying ‘I clearly understand that under the laws of Hong Kong, I am under the duty to prove my claim.’ (Hearing Bundle page 116, QA. 31).

62. Yet despite managing to have the screening interview adjourned in May 2015 in order to obtain documents from Singapore that supported his claim (see Hearing Bundle page 117 QA. 30, 32), no evidence at all such as estate documents, medical reports or proof of political membership were forthcoming even at the hearing some eighteen months later on.

63. I do not accept the Claimant’s explanation that he has been unable to obtain relevant documents merely because without copies of his original passport or identity documents he has been unable to establish his identity.

64. Whilst it is understandable that some proof of identity be required, the fact of the matter is that the Claimant has at all times been legally represented by a most competent solicitor and I have no doubt that had a signed written consent from the Claimant been sent to the institutions concerned by his solicitor that some documents such as medical records could have been obtained. There is no evidence that this was ever done.

65. In view of my findings in this regard coupled with the fact that I am satisfied that the Director has given the Claimant every possible opportunity to establish his claim and that it was the Claimant himself who was unwilling to proceed with the screening interview on 27 May 2015, I find there to be no merit in the Grounds of Appeal filed on 15 December 2015 and I dismiss them.”

16.  Of the bases of such findings it would be relevant to next consider exactly what “every possible opportunity” that the Director was said to have given the Applicant to establish his claim by referring to the Notice of Decision dated 9 December 2015 in particular as to paragraphs 5 to 24 in which the Director set out in details all those opportunities given to the Applicant to do so, and it would be suffice for the present purpose to just recite that last paragraph of the Director’s summery of how the Applicant had failed to provide the necessary documentary evidence in support of his claim as follows:

“ You [the Applicant] were served with the Notice on 3 October 2014 and your completed NCF was received by us on 21 November 2014. Since then, three interviews had been arranged with you on 27 May 2015, 14 August 2015 and 15 September 2015 respectively. For the interview on 27 May 2015, you requested the interview to be adjourned until you have the supporting documents and you also revealed that you could provide your supporting documents to us by 6 to 10 weeks, and you confirmed that you could have an interview with us to explain your basis of claim in details by then. However, as of today we still had not received any supporting documents or explanation regarding your failure to provide the supporting documents. For the other two interviews being arranged on 14 August 2015 and 15 September 2015, you failed to proceed or attend the interviews due to your sickness. Considering your health condition and to ensure the expeditious and efficient processing of your claim, on 15 October 2015, we had put forth a number of clarification questions to you and requested you to provide the answers by 29 October 2015. However, you had not returned the answers to our Question Sheets despite the extension of time had been given twice. We would like to reiterate that we have already ensured that you were not deprived of a reasonable opportunity to establish your claim by arranging reasonable times of interviews for you and putting a number of clarification questions for you to answer. More than a year has lapsed since you submitted your NCF on 21 November 2014, we are of the view that reasonable time and opportunities have been given to you to respond to or provide information in support of your non-refoulement claim. We had also repeatedly remind you that we may proceed to make decision on your claim on the basis of all available information without further notice if you failed to answer the questions sheets put forth to you and return it to us within the prescribed time. As such, we decided to proceed with the assessment of your claim on the basis of available information.”

17.  As against this backdrop of his process before the Director, there is no question that the burden of proof rested on the Applicant to establish that there are substantial grounds for believing that he would be in danger of being subject to harm should he return to Singapore: see Secretary for Secretary v Sakthevel Prabakar (2004) 7 HKCFAR 187, [2004] HKCU 638, para 51.

18.  While this is subject to the requirement of high standards of fairness that the Director and the Board must respectively observe in determining a torture or non-refoulement claim,how that requirement would modify or otherwise affect in practice the burden of proof must depend on the circumstances of each individual case, as Cheung CJHC (as he then was) stated in TK v Jenkins & anor [2013] 1 HKC 526 at para 23:

“ …it should be noted that in Prabakar, the Court of Final Appeal was concerned with an unrepresented torture claimant, whereas under the enhanced screening mechanism, a torture claimant is represented and assisted by the Duty Lawyer Scheme. Within reasonable bounds, the torture claimant’s side is expected to conduct its own investigation and obtain information and materials that it requires to prove its case. Ultimately, the matter boils down to commonsense and fairness.”

19.  His Lordship then proceeded to conclude about this requirement in para 25:

“ High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under art 3(1) of the CAT is valid must be one of ‘joint endeavour’. CH v Director of Immigration [2011] 3 HKLRD 101, [2011] HKCU 758, para 47.”

20.  In the Applicant’s case, as rightly pointed out by the Board, he was legally represented by a most capable solicitor throughout the process up to and during his appeal before the Board, and if I may add if what he claimed is true, that he himself was a university graduate with a law degree and with years of experiences in the types of works he claimed to have been involved, and that at this age and state of the technology when information can be readily and quickly obtained without much bureaucratic hurdles, and given the ample time and opportunities that he had already been afforded as noted above,I am unable to see how it can reasonably be argued that the Board, or for that matter the Director, had erred in law or in procedure in refusing to accept the Applicant’s assertion that his failure to produce any documentary evidence in support of his claim was due to the fact that he did not have his passport to prove his identity so as to enable him to obtain the documentary evidence to support his claim.

21.  In fact, even now in his application before me, the Applicant did not even produce any evidence of any attempts by him or his lawyer such as requesting letters to various authorities or government departments of Singapore or their responses regarding those documents which he claimed to be able to support his case.  There is simply none whatsoever,and given the fact that the Board had had the benefit of hearing him in oral evidence and in his answers to questions raised by the adjudicator during the oral hearing of his appeal before the Board, there is simply no merit in this complaint of his either, and for these reasons I do not find any reasonably arguable basis to challenge the finding of the Board on the credibility of his claim.

22.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

23.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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