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HCAL 2652/2018
[2021] HKCFI 566
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2652 of 2018
BETWEEN
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MD Golam Kibrea |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be granted.
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 16 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”). The Board had, in fact, made another Decision prior to this one. The previous Decision is dated 25 August 2016 (“the Board’s First Decision”), which the applicant has not applied for leave for judicial review. On both appeals, the applicant was late. The Board, having considered his explanations, did not accept his explanations and, there being no special circumstances, it declined to extend time for him to file his Notices of Appeal.
2. Since the intended appeals intend to set aside the Director’s decision rejecting his non-refoulement application, I shall consider the Board’s First Decision and Second Decision together in order to avoid duplicity of applications by the applicant.
3. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.
4. 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. It is further amended that the relief the applicant seeks relief is the Board’s First Decision and the Board’s Second Decision.
The applicant
5. The applicant is a Bangladeshi national. He was arrested by police for overstaying on 7 April 2009. On 10 April 2009, he lodged his torture claim under Part VIIC of the Immigration Ordinance (“the Ordinance”) with the Immigration Department.
6. He claimed that if refouled, he would be harmed or killed by the members of Awami League as he was a member of the Bangladeshi National Party and he was framed for causing a bomb blast in 2003.
7. His application for torture claim was rejected by the Director and on appeal, his appeal was dismissed by the Board on 20 February 2013.
The Director’s Decision
8. The Director considered his application in relation to the following risks:
a. 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”);
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”).
9. By Notice of Decision dated 13 November 2015 (“the Director’s Decision”), the Director refused his claim on BOR 3 risk and Persecution risk for the reason that his claim was assessed to be low [26]; that state protection was available to him [32] and internal relocation was an option open to him [33].
10. By another Notice of Decision dated 28 February 2017 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk for the reason that he had failed to established his case for this remedy.
The Board’s Decisions
11. The applicant filed his Notice of Appeal dated 10 December 2015 to the Board against the Director’s Decision, which is out of time. The Board took the preliminary issue in accordance with Paragraph 9.2 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. The Board was not satisfied with his explanation. The Board further considered that there were no special circumstances in support of his application. By its First Decision, the Board refused to extend time for him to file his Notice of Appeal.
12. The applicant also filed his Notice of Appeal dated 17 April 2017 against the Director’s Further Decision, which is again out of time. The Board went through the same exercise of assessing whether time should be extended to him to file his Notice of Appeal. The Board was not satisfied with his explanation and, there being no special circumstances, by its Second Decision, it also refused to extend time for him to file his Notice of Appeal against the Director’s Further Decision.
Application for leave to apply for judicial review
13. The applicant filed Form 86 on 23 November 2018 for leave to apply for judicial review of the Board’s Second Decision. Form 86 has now been amended and it covers the Board’s First Decision and the Board’s Second Decision.
14. In his affirmation in support of his application, he said that the Board’s Second Decision was unfair and unreasonable and that his life would be in danger if he returned to his country.
DISCUSSION
15. The Board had not considered the merits of the applicant’s case on the two occasions before it refused to extend time for the applicant to file his Notices of Appeal. It is apparent that the Board was in possession of the Director’s Decision and Further Decision as under the Ordinance, the Director has to pass the Decisions to the Board for consideration. The Board had not stated that it had considered the merits of the applicant’s case as shown in the Director’s Decisions.
16. In Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, the Court of Appeal held:
“17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.
20. … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”
17. The Board’s Decisions were made before the Court of Appeal’s judgment. However, the rationale of the Court of Appeal’s judgment still applies.
CONCLUSION
18. I therefore grant leave for the applicant to apply for his intended judicial review. He should take out his application under Order 53, rule 4 of the RHC.
Dated the 10th day of March 2021
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(M. O. WONG)(Ms) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 10 March 2021
MD Golam Kibrea
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10 March 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2750/15/12/79/B362; BOR 429/17/4/78/B44
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 918/15 & RBCZ/9001874/16 (Formerly RBCZ/2000558/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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