MD RONYE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1118/2022

[2023] HKCFI 673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1118 of 2022

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 oral submissions by the Applicant in open court;

1.  Extension of time for the Applicant to apply for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 29 May 2019 be refused; and

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

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review (“the leave application”) of the decision of the Torture Claims Appeal Board / the Non-refoulement Claims Petition Office (the “Board”) dated 29 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 October 2018 (the “Notice”).

2.  The Applicant is a Bangladeshi national, now aged 45. He last arrived at Hong Kong on 3 March 2006 as the holder of a Bangladeshi passport under the identity of Md Ronye. He overstayed since 18 March 2006. He was arrested by the police on 17 September 2006 without any identity document.

3.  He lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT Claim”) on 3 October 2006. His CAT Claim was rejected on 22 February 2013. He did not further pursue that application. The decision refusing his CAT Claim became final.

4.  Following the implementation of the Unified Screening Mechanism (“USM”), the Applicant raised a non-refoulement claim on 8 April 2013. That claim was assessed under all applicable grounds under the USM other than the torture risk ground which had been determined in his CAT Claim, namely, BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3] grounds. By his Notice, the Director rejected the Applicant’s claims. The Applicant appealed. His appeal against the Director’s decision in the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

5.  The leave application was made more than three years out of time. This is a very substantial delay. Pursuant to Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. To obtain extension of time for making an application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted or refused; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[4]. Merits of the substantive application is a very important and, usually, the determinant factor. But, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[5] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The instant case is precisely the type of case to which the principle in Po Fun Chan v Winnie Cheung applies. However, this Court will continue to consider merits for whatever the application is worth.

The Applicant’s identity

6.  Investigation by the Immigration Department revealed that the Applicant had previously entered Hong Kong under the different identity of Mia Nijam on 28 February 2004, overstayed since 14 March 2004, was arrested and then repatriated on 21 February 2006. Then, within ten days, he came to Hong Kong again under the identity of Md Ronye.

7.  When he was arrested on 17 September 2006, the Applicant claimed to be Md Nizam but had no identity documents. Then, he claimed to be Mia Nijam. Later, he claimed his true identity is Md Ronye and had lost his passport. However, the Immigration Department record also shows that someone using the passport under the identity of Md Ronye had left Hong Kong on 16 March 2006 six months before the Applicant’s arrest.

8.  Then, before the Board, the Applicant claimed to have used yet a fourth identity, namely Najim, to go back to Bangladesh and presumably to return to Hong Kong between 2004 and 2006 by paying Najim for the use of his passport (see paragraph 21 below). Altogether, the Applicant used three or possibly four different identities, namely Md Ronye, Md Nizam, Mia Nijam and Najim (if there was no mis-spelling by the Board) to enter and exit Hong Kong or in connection with his stay in Hong Kong between 2004 and 2006. Though the Immigration Department had closed inquiries on his identity on 18 October 2006, his true identity remains uncertain.

The Applicant’s case

9.  The following account of the Applicant’s case is mainly based on the information in the torture claim form and supplementary claim form prepared by him with legal assistance. In gist, his claim is based on his fear of being harmed or killed by Selim Khan (“Selim”), the leader of the Bangladesh Nationalist Party (“BNP”) in his village, and by members of the BNP for refusing to quit the Bikalpa Dhara Party (“BDP”) to join the BNP.

10.  The Applicant was born and brought up in Patahog. He is single and has completed 9 years of formal education. He joined the BDP in 2001 and became the president of ward numbers 1, 2 and 3 within the Patabhog Union in 2003. He promoted and participated in activities of the BDP in Mirpur, Dhaka in 2006.

11.  The Applicant said he and other BDP members always had fights with BNP members when attending party meetings, rallies and processions. On 28 March 2005, the Applicant and other BDP members were attacked during a BDP procession by Selim and a large party of BNP members. Many BDP members were injured including the Applicant. The Applicant called the police but the police did not respond. He believed that was because the BNP were in power and had a strong influence over the police. The Applicant also sought help from other local authorities but to no avail.

12.  In mid-October 2005, Selim detained the Applicant in a building of the BNP. He was only given one meal per day. He was slapped and fisted for five to six times for the purpose of forcing him to concede to their demand of quitting the BDP to join the BNP. He was released when he finally pretended to agree to quit the BDP.

13.  However, after two to three weeks, the Applicant’s mother told him that Selim had filed a false criminal case against him along with seven other BDP members for murder. He was also threatened on three occasions with assaults and arrest by the police.

14.  One night, upon being alerted by a neighbour that the police had come to his village to arrest him, the Applicant fled. He went to stay with his friends and relatives in various places until he moved to Mirpur, Dhaka at the end of December 2005 where he stayed with his aunt for two months.

15.  One day in January 2006, while he was in Mirpur, BNP members attacked his home and assaulted his family members. His parents were threatened by Selim to provide information as to his whereabouts. They also told his parents that they would kill him when they caught him. A report was made to the police, but the police took no action. After he was told about the incident, the Applicant arranged his flight and departed for Hong Kong on 3 March 2006.

16.  Because of the continuing threats from BNP members, the Applicant’s parents moved to Shologhor in June 2011. However, BNP members went there twice to disturb his family and to threaten them to disclose his whereabouts.

17.  The Applicant believes that Selim would kill him and torture his family members if he returns to Bangladesh and that the police will not help him because he is involved with the BNP.

The finding of the Board

18.  The Applicant testified before the Board. The Board considered his evidence vague, inconsistent and confusing. It identified numerous inconsistencies and contradictions in his evidence. One of the most significant inconsistencies arose out of his use of false identities in entering and exiting Hong Kong, his explanation for the use of the false identities, and his low morality about honesty. He did not consider his misrepresentation over identity a lie. The Board was not unsympathetic or insensitive to the plight of an asylum seeker and his need to conceal his true identity when trying to escape from the risk state but disagreed with his low morality in telling the truth when he is in a safe host state seeking its host’s protection. This weighs heavily against his credibility. The Board found he was willing to tailor his claim and his evidence to suit his migration aims irrespective of the truth or the evidence. The Board found him incredible and rejected the great majority of his evidence.

19.  The Applicant did not make any claim for protection during his first stay in Hong Kong between February 2004 and February 2006 or during his second stay from 3 March until his arrest on 17 September 2006. His delay of two and half years in making a claim undermined the credibility of his claim to have a genuine and grave fear for his life, if returned to Bangladesh.

20.  The Board considered the Applicant’s evidence about his involvement in the BDP shallow and lacking in detail or clarity. While the Board accepts that he may have supported the ideology of the BDP, it does not accept he was an activist or held any positions in the BDP, particularly not as a ward president.

21.  The Applicant’s fear is rested on the attack in March 2005, his detention in October 2005 and a false charge of murder in November 2005. All these events allegedly occurred while the Applicant was in Hong Kong between February 2004 and February 2006 under the identity of Mia Nijam. The Applicant explained that in between he had returned to Bangladesh using Najim’s passport by paying Najim. On the basis of the Immigration Department’s record, the Board rejected the Applicant’s explanation and his claims about the attack and detention.

22.  The Board did not accept the Applicant’s claim about the false charge of murder as it found the Applicant’s evidence unreliable and was not satisfied that the documents he submitted in support of that claim authentic and not fraudulent. The Board also found that even if he had a claim based on the false charge he has a complete defence of alibi and does not have a real risk of serious harm, cruel inhuman degrading treatment or punishment.

23.  In conclusion, the Board did not accept the Applicant had ever been subjected to ill-treatment in Bangladesh by Selim and/or members of the BNP, or that he was ever threatened or mistreated by them. Accordingly, it does not accept that the Applicant ever participated in political matters, nor that he is subject to an arrest warrant or criminal charges in Bangladesh.

24.  Applying the law applicable to non-refoulement protection under the USM, the Board found that the Applicant had failed to discharge the burden of proving the factual basis in support of his claim to protection under any of the remaining three applicable grounds under the USM. Hence, the Board dismissed his appeal.

The legal principles applicable to judicial review

25.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6]. Thus, absent specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, procedural unfairness and irrationality.

Grounds for judicial review

26.  At the hearing, after explaining the above principles to him, the Applicant confirmed that he had no complaints about error of law or procedural unfairness. He only emphasized that his problem is about the risk to his life upon his return to Bangladesh. Thus, his only ground of application is in effect a challenge against the finding of fact of the Board, which is not permissible.

27.  In his supporting affirmation, the Applicant exhibited the Decision and made five observations:

(1)  He is a genuine non-refoulement claimant facing dangerous problems, harassment and torture;

(2)  The Director erred in assessing his claim without proper inquiry and careful understanding of his situation; he invited immigration officers to make inquiries in Bangladesh;

(3)  If he did not run away, he would certainly have been killed;

(4)  For the above reasons, leave to apply for judicial review should be granted; and

(5)  He repeated his request for leave to be granted.

28.  By these observations, the Applicant expressed his disagreement with the decision of the Director. As the Director’s decision in the Notice had been superseded by the Board’s Decision and the Applicant is seeking leave to apply for judicial review of the Board’s Decision, this Court assumes for his benefit that his observations apply to the Decision of the Board as well. That said, these observations also amounted to challenges against the Board’s finding of fact, which for reasons as explained in Paragraph 25 is not permissible save for errors of law, procedural unfairness and irrationality in the Decision.

Discussion

29.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board found the Applicant not credible on the crucial issues of his risk of harm upon his return to Bangladesh. Basically, he failed to discharge his burden of proving his fears and risks. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the three remaining applicable grounds under the USM. This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

30.  The leave application is made more than three years out of time. The intended application for judicial review has no realistic prospect of success. For these reasons, extension of time to apply and the application for leave to apply for judicial review are refused.

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