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

HCAL 1782/2018

[2020] HKCFI 780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1782 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 1 June 2017 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 1 June 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 13 December 2019.

The applicant

3.  The applicant is a Bangladeshi national. He came to Hong Kong on 14 May 2014 illegally and was arrested by police on the same day. He was referred to the Immigration Department for investigation. He lodged his non-refoulement claim on 16 May 2014.

4.  He claimed that if refouled, he would be harmed or even killed by the people of Awami League (“AL”) as he was a member of Jamaat-e-Islami (“JEI”), a rival party of AL. He also claimed that the AL people had filed two false criminal cases against him to the police of Bangladesh.

5.  He was a general secretary of a branch of JEI and the AL leader, Shahid told him to leave JEI. He refused. Shahid warned him that there would be bad consequences. 15 days later, Shahid brought 7-8 people with weapons of wood sticks and iron rods to go to a meeting of JEI. Shahid was holding a pistol. They attacked the JEI members. He managed to escaped whilst other members were seriously injured. He and other members of JEI reported this matter to police. The police refused to take up the complaint.

6.  Two days after the incident above, 20-25 AL members went to his home to look for him. He was not at home. His brother tried to prevent them from entering and was attacked by the AL members with choppers and iron rods. He was seriously injured. They also warned his father that they would kill the applicant if they saw him. They then vandalized his home. His father reported this matter to police. The police did not take up the matter.

7.  The AL members met his brother Rahman, who was taking 500,000 Taka to the bank. They took away the money. Rahman reported to police. The police refused to take up the matter. He moved to live in Chittagong district for 11 months. He learned that he was accused of having extorted money from people.

8.  In April 2013, he went to attend a meeting at Comilla. The AL people attacked him and his members. The AL group had 40 to 50 people. He was able to escape whilst his other members were injured. However, the AL people lodged another case against him of possessing illegal firearms. He had to move to Dhaka and hid himself up until February 2014 when he departed Bangladesh for China. From China, he sneaked into Hong Kong.

The Director’s Decisions

9.  The Director considered his application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     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

d.     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”).

10.  By Notice of Decision dated 15 April 2016 and Notice of Further Decision dated 8 March 2017, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director did not accept that he would face a real and foreseeable risk of ill-treatment/torture upon his return to Bangladesh [13]; that there was no evidence that the state was involved or there was state acquiescence [17]; that state protection was available to him [20] and internal relocation was an option open to him [21]. His claim under BOR2 risk was not established.

The Board’s Decision

11.  The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 13 April 2017.

12.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

13.  The Board considered the applicant’s evidence and found that whilst it did not reject his evidence wholesale, it did not find the applicant’s claims in relation to the incidents credible [79]. It did not accept that there was any countrywide campaign against all JEI members; that there were two false complaints made against him [82]. It also found that relocation to other destinations would be a reasonable and safe alternative to return to his parents’ home [83]. See §§50-83 of the Board’s Decision.

Application for leave to apply for judicial review

14.  The applicant filed Form 86 on 30 August 2018 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, he did not set out any grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

16.  The applicant’s application is out of time. The Board’s Decision is 1 June 2017. The deadline for him to file his application is 1 September 2017. His application is therefore more than eleven months. In Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28, the Court of Appeal held that the applicant cannot proceed with the application for leave for judicial review without extension of time for him to file his application out of time.

17.  The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 held that this Court has to consider the merits of his case before considering whether time should be extended for him to file his application.

18.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration Officer and a fair hearing before the Board. Also, he had no comment on the Board’s findings.

19.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

20.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

21.  I therefore refuse to grant extension of time for him to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

22.  It is further directed that:

a.     If the applicantintendsto appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

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