ALI IDRIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 452/2019

[2022] HKCFI 696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 452 of 2019

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 by the Applicant being absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) “made on unknown date but notified to him on 11 February 2019” (the “Decision”). He filed his Form 86 with the Registry on 18 February 2019.

2.  He requested an oral hearing, but he never attended the two hearings scheduled for him.  Hence, his application is now determined by way of paper.  

3.  On the Applicant’s case, by that Decision, the Board allowed, at his request, his application to withdraw his appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 20 December 2017 (the “Notice”) refusing his application for non-refoulement protection.  According to enquiries made with the Board, the only decision refusing the Applicant’s application to withdraw the appeal was made on 23 February 2018.  That is the Decision in respect of which the Applicant now seeks leave to apply to quash by way of judicial review.  It is not known why the Applicant alleged that the Decision was notified to him on 11 February 2019 a year later. 

4.  The Applicant’s case for the intended judicial review as revealed in his supporting affirmation is that following the refusal of his non-refoulement claim by the Director’s Notice, he lodged an appeal to the Board.  Before the Board heard his appeal, he withdrew the appeal thinking that his problems in his home country Bangladesh were solved and he could safely return.  But he was mistaken.  His problems in Bangladesh remain and his life is still in danger.  He went to the Board on 11 April 2019 to lodge a letter seeking to re-open his appeal.  So, it is his case that he was notified of the Decision of the Board on that day.  He exhibited the letter and a receipt from the Board showing that the date was 11 February 2019 and not 11 April 2019 as he alleged in his supporting affirmation.  The Court assumed the word “April” is a typo.

5.  Under 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 grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  As the Decision sought to be reviewed was made on 23 February 2018 and the application for leave to apply for judicial review was made on 18 February 2019, it was nearly nine months out of time.  The Applicant has to obtain leave to appeal out of time before making the present application. 

Applicable legal principles

6.  A delay of three months in making an application for judicial review is usually considered to be an undue delay.   In AW and Director of Immigration & Anor[1], the Court of Appeal held that in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account:

(1)        length of delay;

(2)       explanation for the delay;

(3)       merits of the intended application;

(4)      prejudice to the applicant vis-à-vis that to respondent if an extension of time is refused or granted; and

(5)        whether the application raises any question of general public importance.

In considering the merits of the intended appeal, it must be borne in mind that the role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (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.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

The facts

7.  The Applicant is a national of Bangladesh.  He flew from Bangladesh to China on 27 October 2013 and sneaked into Hong Kong on 15 January 2014.  He surrendered to the Immigration Department on 25 February 2014 and then lodged a non-refoulement claim on 11 April 2014.  His claim is based on his fear that, if returned to Bangladesh, he will be harmed or killed by members or supporters of the ruling political party Awami League because of his political affiliation with Jamaat-e-Islami political party.

8.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  By the Notice dated 20 December 2017, the Director rejected his claims.  He filed a timely appeal to the Board against the decision in the Notice within 14 days of the Notice, ie before 3 January 2018.

9.  Just a month later, on 5 February 2018, he wrote to the Immigration Department to withdraw his appeal.  He wrote:

“I want to go back to Bangladesh as soon as possible.

I am safe to go home and I have no money to buy air ticket.

I want to cancel all my non-refoulement claims in Hong Kong and I don’t need to see my non-refoulement case officer.

I have no other requests.”

It is somewhat curious why on or shortly before 3 January 2018, he lodged his notice of appeal to the Board, but shortly within a month or so he wrote to the Immigration Department instead to withdraw his appeal.

10.  The Immigration Department re-directed his request to the Board.  On 14 February 2018, the Board wrote to him acknowledging receipt of his letter dated 5 February 2018 and informed him that unless he advised the Board otherwise, the Board presumed:

(a)   he was applying to withdraw his appeal against the Director’s decision in the Notice;

(b)   he understood the consequences of the proposed withdrawal (i.e. once the withdrawal is confirmed, his appeal will be dismissed and the Director’s decision in the Notice will be confirmed.  His appeal would be disposed of and finally determined by the Board.  No further action will be taken by the Board in relation to his appeal.)

The Board also advised him to seek independent legal advice on the consequences of the proposed withdrawal and that if it did not receive any reply from him on or before 22 February 2018, the Board will consider approving his application for withdrawal.

11.  The Applicant did not respond.  Thus, on 23 February 2018, the Board issued a letter informing him that his application to withdraw had been allowed.

12.  Remarkably there was a total silence in the Applicant’s supporting affirmation as to what happened during the year that followed his letter of withdrawal.  He did not mention about the two letters from the Board explaining the consequences of the withdrawal and then allowing his application to withdraw.  But totally out of the blue, the Applicant said in paragraph 8 of his affirmation that his friends told him that the situation in Bangladesh went worse and they advised him not to return.  So on 11 February 2019[6], he went to the Board and presented a letter requesting to re-open his case.  He exhibited his letter and the Board’s receipt for the letter bearing that date as evidence that he was notified on 11 February 2019 of the Decision allowing his withdrawal. 

13.  The Applicant wrote to the Immigration Department to withdraw his appeal in 5 February 2018 and then went to the Board to revive his appeal a year later on 11 February 2019.  The only reasonable inferences are that in between these events he learned that the Board, not the Immigration Department, was the proper venue to deal with his appeal against the Notice; and he learned that because he had received the Board’s two letters.  This reflects that the Applicant was telling partial truth in order to paint a picture that he had never received the Board’s letter dated 23 February 2018 informing him its Decision allowing his application to withdraw the appeal.  This is one of the issues which this Court wished to explore with him at an oral hearing.  This goes to the heart of his explanation for the delay.

14.  More surprisingly, the Applicant went on in his affirmation and said in paragraph 9 that five days later, ie 16 February 2019, an officer of the Immigration Department telephoned him and told him that the officer had contacted the Board, that the Board informed the officer that it would not re-open his appeal, and that he should “apply Judicial Review against the written letter and the receipt”.

15.  It is curious that for no reason an immigration officer would have advised the Applicant that the Board would not re-open his appeal and that he should seek judicial review “against the written letter and the receipt”.  The Immigration Department may have been informed by the Board about allowing the Applicant’s withdrawing the appeal, but how would the officer have known about the letter and the receipt?  This is another issue which this Court wished to explore with him at an oral hearing.

16.  The rest of his affirmation is about his fears and dangers in Bangladesh. 

17.  There were a lot of questions which this Court would wished to ask the Applicant during the hearing to clarify and explain, such as when and the circumstances under which he first came to know about the Decision.  The Court would also wish to explore his reasons for the delay in making this application. 

18.  He was invited by this Court’s letter dated 16 June 2021 to file his submission and advised that he should notify the court of his change of address as soon as possible.  That letter was sent to his address at Carnavon Road as stated in his Form 86.  He responded but chose not to file any submission. 

19.  A notice of hearing on 6 January 2022 was sent to him at the same address.  He was informed that if he did not appear at the hearing, he would be deemed to have waived his right to make oral submissions and the Court will deal with his application according to the paper already placed before the Court.  The notice had not been returned. But he did not attend the hearing. 

20.  As result of the Court’s enquiries with the Immigration Department, the Court learned that he had moved to another address at Cooke Street.  A notice of hearing on 20 January 2022 was sent to him at that address.  The notice was not returned through the post.  Again, the Applicant did not attend.  He is again deemed to have notice of the hearing and waived his right to make oral submission. Accordingly, the Court determined his application on paper.

Length of delay and explanations for the delay

21.  The application was nearly nine months out of time.  The delay is very substantial.

22.  The Applicant painted a picture that he had never received the Decision, but was only informed nearly a year later when he took the initiative to go to the Board to request re-opening his appeal.  As mentioned above, his case is problematic.  The only reasonable inference is that he was concealing the truth that he had received the Board’s letter dated 23 February 2018 allowing his application to withdraw the appeal. His explanation that it was only until 11 February 2019 that he was notified of the Decision was only a fabrication for the purpose of creating an explanation for the late application.  The real reason for the delay was his inaction.  He has no explanation for the very substantial delay in making the application.

The Decision of the Board sought to be reviewed

23.  The Applicant appealed against the decision of the Director in the Notice.  Before the appeal was heard, he applied to withdraw the appeal.  The Board allowed his application. He now seeks to leave to apply for judicial review of that Decision.  The Board had not issued any formal decision as such.  In its letter to the Applicant dated 23 February 2018, it wrote:

“The Board has considered your application to withdraw your appeal/petition having regard to all the available information placed before it. After consideration, the Board is satisfied in all the circumstances that your application to withdraw the appeal/petition was freely sought, and that you understood the consequences of the withdrawal. The board is also satisfied in all the cirrcu8mstances that there is good reason for your proposed withdrawal of the appeal/petition, namely, that you consider it safe for you to return to Bangladesh. Under the circumstances, the Board has given direction that your appeal/petition be withdrawn. The Board has also directed that the immigration officer’s decision of 20 December 2017 be confirmed.”

Apart from allowing the application to withdraw, the Board confirmed the Director’s decision in the Notice that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM and that it is safe for him to return to Bangladesh.  These are the two main decisions in the Decision which the Applicant sought to be reviewed.

Grounds of the intended Appeal

24.  The Applicant advanced the following four grounds of appeal in Form 86:

(1)               the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)               the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)               the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4)               the Board failed to meet the greater care and duty owed to a self-represented claimant.

25.  Though not listed as a ground, the Applicant mentioned in page 15 of the Form 86 that he “was not legally represented in his appeal filing” and the Board acted unfairly in making a decision relating to BOR 2 Risk ground without having the Applicant attending a screening interview before an immigration officer.  The Court treated this as the Applicant’s fifth ground of appeal.  It also made an unspecific complaint that “there is many more unacceptable and unexplainable grounds”.  The Court was unable to consider this un-particularised ground.

26.  These grounds are framed on the basis that there was a contested hearing before the Board in which the Board by way of a fresh hearing made certain finding of fact and refused his application for non-refoulement.  The complaints are directed at the Board.  As there was no contested hearing before the Board, the Court assumed in favour of the Applicant that these complaints are directed at the Director and the immigration officer acting under his authority.

Ground (1) – Unlawful exercise of discretion

27.  Under this ground, the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection.  This could not be a valid ground for application for leave.  The Board did not refuse his appeal.  The Board allowed his application to withdraw the appeal.  When confirming the decision of the Director in the Notice, the Board made its own finding of facts which happened to be similar to the Director’s.  By reason of his withdrawal, the Applicant chose not to contest the findings of the Director.  If the Applicant did not satisfy the requirements for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notices and dismiss the uncontested appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. 

Ground (2), (3) and (4) – Procedural unfairness, procedural error, breach of duty etc

28.  These are bare allegations without particulars.  In the absence of particulars, the Court was unable to consider them.

Ground (5) – Lack of legal representation in “appeal filing”

29.  In the context in which this ground was raised, “appeal filing” must refer to the filing of the notice of appeal with the Board against the Director’s decision in the Notice. 

30.  In Re Zafar Muazam[7], Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], and Re Lopchan Subash[11], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the Applicant was prejudiced due to lack of legal representation before the Board. 

31.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his non-refoulement claim form and at the screening interview and in presenting his case to the Director.  He therefore had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director.  Despite he was not legally represented in preparing his notice of appeal, he had all the benefits which legal representation could have afforded him and those benefits were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  The Applicants suffered no prejudice due to lack of legal representation before the Board.

Merits of the intended application

32.  Except for the issue of error of law, procedural unfairness and irrationality left open under Ground (1), there is no arguable appeal raised by the Applicant in his six specific grounds of appeal.

33.  In respect of those outstanding issues, insofar as the Board is concerned, before allowing the withdrawal, the Board had explained to the Applicant in no equivocal terms in its letter dated 14 February 2018 that the consequences of his proposed withdrawal are that once the withdrawal is confirmed his appeal will be dismissed and the Director’s decision the Notice will be confirmed.  He was advised to seek independent legal advice and given more than 14 days to change his mind before the Board would confirm the decision of the Director in the Notice.  The Applicant’s evidence is that he had never received that letter from the Board advising him of the above.  The overwhelming inference is that he had.  By his absence at the hearing, he offered no evidence to contradict that inference.  There is certainly no evidence from the Applicant that before the Board allowed his application he had changed his mind or informed the Board of his change of mind and the reasons for the change.  In allowing his application as the Applicant requested, the Board’s Decision could not be criticised as being unreasonable or irrational.  The Court could identify no error of law or procedural unfairness.

34.  Insofar as the Board’s decision in confirming the decision of the Director in the Notice is concerned, the Board must have satisfied itself with the correctness of decision of the Director.  In gist, the immigration found on the basis of the Applicant’s evidence that the assault and harassment suffered by the Applicant did not attain a minimum level of severity; that the Awami League people had no real intention to harm or kill him and there was no sufficient evidence to show that he would be personally at risk of being subjected to ill-treatment or at risk of persecution from the authorities of Bangladesh.  Furthermore, the immigration officer was satisfied on the basis of the Country of Origin Information (“COI”) that adequate state protection and internal relocation is available to prevent or avoid the risks.  For these reasons, the Director found the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which the Board must have adopted when confirming the decision of the Director.

35.  Having rigorously examined the Notice, the papers and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer 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; correctly identified the issues and observed a very high standard of fairness.  The immigration officer assessed the Applicant’s harm and risk on the basis of his evidence and objective COI.  It must be on that basis that the Board upheld the immigration officer’s finding that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. These are findings of fact which are exclusively within the province of the decision maker, ie the Director and 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 was satisfied that the immigration officer made no error of law and committed no procedural unfairness in reaching the decision in the Notice; and neither did the Board when confirming the Director’s decision in the Notice.  The Director’s decision in the Notice and the Board’s Decision did satisfy the enhanced Wednesbury test.  They were not Wednesbury unreasonable or irrational.  The decisions were utterly without fault.  The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Prejudice to the application and to respondent

36.  As there is no merits in the intended application which is doomed to fail, the Applicant would suffer no prejudice if extension of time is refused.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Prejudice to the application and to respondent

37.  Having regard to the nature of the application and the issues raised, the Court could find no question of general public importance would be raised by this application.

Conclusion

38.  The application for leave to apply for judicial review was filed out of time by nearly nine months.  The delay is very substantial and unexplained.  For reasons as given above, there are no merits in the intended judicial review and the Applicant will suffer no prejudice, if extension is refused; but the proposed respondent will suffer prejudice, if extension is allowed.  The application will not raise any questions of general public importance.  This is therefore not a case for which extension of time to apply should be given.  Accordingly, the application for leave to apply for judicial review is 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

[1] CACV 63/2015 (unreported) 3 November 2015

[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] In his affirmation said that he went to the Board on 11 April 2019.  That must be typographical error as the date on the receipt he exhibited was 11 February 2019.  Furthermore, in his Form 86, he alleged that he was notified of the Decision on 11 February 2019.

[7] cacv 2/2018, (unreported) 23 March 2018

[8] [2018] HKCA 14

[9] [2018] HKCA 15

[10] [2018] HKCA 17

[11] [2018] HKCA 37

[12] (2004) 7 HKCFAR 187

[13] HCAL 51 of 2007