MGM v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 63/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 63 OF 2015

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J U D G M E N T

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INTRODUCTION

1.  The Director of Immigration and the Torture Claims Appeal Board (“TCAB”) dismissed the Applicant’s non-refoulement claim. This judicial review is principally against the Director’s decision.  The grounds are that:

A.   The Director erred in law in his interpretation of “severe physical or mental suffering”.

B.   The Director erred in his consideration of state acquiescence and country conditions, and failed to explain his conclusion on the country conditions of Bangladesh.

C.   The Director erred in his consideration of internal relocation.

D.   As a result, the Director’s decision was a nullity and so was the Adjudicator’s.

2.  The Director denies the allegations.  It is submitted on his behalf that even if there were errors in his decision, the “curative principle” applies so that the Applicant should be deprived of relief.

FACTUAL BACKGROUND

3.  There is no challenge to the findings of fact of the Director or TCAB. I adopt the summary of facts set out in the skeleton submission of Ms Lau (counsel for the Applicant) in paragraphs 4-24 below.

4.  The Applicant is a Bangladeshi. In 1996, he became a member of the Bangladesh Nationalist Party (“BNP”).

5.  In March 2006, the Applicant lived in Dhonia, Dhaka.  The local Member of Parliament was a BNP leader named Salahuddin Ahmed (“Salahuddin”).  The Applicant and four other BNP members went to meet Salahuddin to try to communicate their concerns about the shortages of water and electricity supply, but Salahuddin did not listen and instead threatened to kill the Applicant.  The Applicant lost faith in Salahuddin, and decided to quit the BNP.

6.  On 4 May 2006, the Applicant went with the same four BNP members to meet with a man named Masud, who was a leader of the Bangladesh Student Union, a student wing of the BCP which was an opposing party of the BNP.  The Applicant told Masud his concerns about the situation, and they decided to set up a roadblock at Shonirakhra, at the junction of Dhaka Chittagong Highway, to protest against the inaction of Salahuddin on 5 May 2006.

7.  Around a hundred thousand people gathered and set up the roadblock.  Salahuddin, together with a group of men, went to break up the roadblock.  Arguments arose between the protesters and Salahuddin and his associates.  Salahuddin suddenly and without warning took a gun from a member of the police and used it to hit the protesters.  He slapped one of the protesters who was an elderly man, which drew furious response from the protesters.  The crowd began to throw stones and other objects at Salahuddin. Fighting broke out.

8.  The Applicant tried to protect Salahuddin and rushed to him.  Unfortunately, this was interpreted by Salahuddin as an attempt on his life.  Salahuddin thought the Applicant and the other four BNP members had betrayed him and joined BCP to kill him.

9.  After the fighting, the Applicant returned home, whereupon his brother-in-law informed the Applicant that he had overheard that a group of ten to fifteen of Salahuddin’s people were coming to attack the Applicant.  The Applicant’s brother-in-law advised the Applicant to flee his home for his safety, which the Applicant did.  The Applicant went to a friend’s place in Gazipur and stayed for the night.

10.  On 6 May 2006, the Applicant returned to his home village in Tangail, Salimabad Nagarpur, but was informed by some neighbours that a local BNP cadre called Dawood, who was believed to be involved in terrorist activities, had asked for the Applicant’s whereabouts. The Applicant became scared and left that night.

11.  The Applicant’s wife told him by telephone that some of Salahuddin’s people had come to their home in Dhonia.  When she did not divulge the Applicant’s whereabouts, the men beat her and the children, and threatened to kill them.  The Applicant’s wife asked the Applicant not to return to Dhaka and suggested that he make his way to the house of her brother, Delowar, at Chittagong Road, Naryangonj, some 80 miles away from his home village.

12.  The Applicant arrived at his brother-in-law’s house on 6 May 2006, and met his wife and children there.  Ultimately however, the Applicant’s relatives advised him to leave Bangladesh altogether, given that Salahuddin was looking for him and would likely attack his brother-in-law.

13.  On 8 May 2006, the Applicant used his passport to leave Bangladesh for Hong Kong, where he was able to remain as a visitor for 14 days.

14.  The Applicant then went to Mainland China on 19 May 2006, but was refused entry into Hong Kong on 21 May 2006 when he tried to return.  Instead, he was returned to Mainland China before returning to Bangladesh on 24 May 2006 since he had no money and did not know how to survive in China without assistance.

15.  When the Applicant returned to Bangladesh in 2006, he returned to Delowar’s house.  However, the Applicant was informed that Salahuddin and his people were still looking for him, and they had threatened to kill him if they ever found him.  Further, the Applicant’s wife received telephone calls from unknown persons who kept asking for the Applicant’s whereabouts and who threatened to kill her and her children.

16.  In around mid-June 2006, unknown persons who to the best of the Applicant’s knowledge were sent by Salahuddin’s people came to Delowar’s house, which forced the Applicant to flee to Chittagong.  The Applicant’s wife told him over the telephone that the men had beat Delowar and the Applicant’s family when they could not find him.

17.  The Applicant first stayed with Jamaluddin, his younger brother-in-law, in Chittagong, then left Bangladesh for India under a new passport in the name of “Mamun” on 30 June 2006.  He was afraid he could not leave Bangladesh using his own passport.  However, he discovered he did not have sufficient funds when leaving Bangladesh so suddenly, and returned to Bangladesh and Delowar’s house to obtain funds, stayed with Jamaluddin, then left Bangladesh again on 18 August 2006.

18.  When the Applicant was staying with Jamaluddin, Jamaluddin received a few telephone calls from a BNP cadre named Jummon Member from Dhonia, Dhaka, looking for him on Salahuddin’s order.

19.  On 18 August 2006, the Applicant used a Bangladeshi passport in the name of “Mamun” to enter Hong Kong on 18 August 2006, and was allowed to remain as a visitor until 1 September 2006.  The Applicant overstayed in Hong Kong since 2 September 2006 and was arrested on 15 May 2008.  On 17 May 2008, he was charged for using a false travel document and two counts of making a false representation to an Immigration Assistant, but the charges against him were all withdrawn on 24 June 2008.

20.  On or about 27 May 2008, the Applicant made his claim under UNCAT for protection.  He had hitherto been unaware of the availability of such protection and the procedure for seeking it.

21.  Since arriving in Hong Kong in 2006 until the present day, the Applicant has maintained contact with his family in Bangladesh by telephone.  His family informed him that in 2010, Salahuddin had sent some people to ask his son about his whereabouts.  They beat up his son and threatened to kill him and the Applicant’s family if he continued to be uncooperative.

22.  When the Applicant contacted his family in Bangladesh in February 2014, he learnt that Salahuddin’s people were still threatening his wife and children.

23.  It is widely known, and it was the Applicant’s view, that extrajudicial violence in Bangladesh is rife, and it would not be safe for him to return to Bangladesh.  In particular, Salahuddin and/or the BNP remain hostile to him.  The Applicant would not be afforded sufficient protection by the relevant authorities were he to return to Bangladesh, and the BNP had an expansive network of persons which would enable them to locate the Applicant if he returned to Bangladesh.

24.  The Director rejected the Applicant’s non-refoulement claim on 15 September 2014.  The appeal to the TCAB was dismissed on 27 April 2015. Form 86 was filed on 8 May 2015.

25.  The court granted leave to apply for judicial review, without prejudice to the Director’s argument that the application is out of time.

ALTERNATIVE REMEDY AVAILABLE

26.  It is trite law that judicial review will not be granted if an applicant has not exhausted all available alternative remedies: Kwok Ping Sheung Walter v The Law Society of Hong Kong, HCAL 73/2012, 27 September 2013, §§26-27, Au J.

27.  The Adjudicator conducted an oral re-hearing with the Applicant represented by a Duty Lawyer.  The Adjudicator had actually taken in new materials not before the Director, eg the injury to the Applicant’s son, the mental suffering of the Applicant and COI materials.  All the alleged errors of the Director had in fact been laid before the Adjudicator and she had given reasons in support of her rulings against the Applicant. There is no challenge to the Adjudicator’s findings of facts.  The application to judicially review the Adjudicator’s decision was abandoned in the re-amended Form 86.  In fact, the Adjudicator’s reasons for decision were, in my view, impeccable.

28.  Since the Applicant had the alternative remedy available and has resorted to it, he should not be allowed to turn round and seek judicial review of the Director’s Decision.  This ground is sufficient to dismiss the judicial review.

EXTENSION OF TIME FOR JUDICIAL REVIEW

(1)  Legal principles for extension of time

29.  If I am wrong, I need to decide if I should grant extension of time for judicial review.  The legal principles for extension of time have been set out in AW v Director of Immigration & anor, CACV 63/2015, 3 November 2015, §27:

“(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K(6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled ….

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case ….

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v)   Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.”

(2)  Explanations for delay

30.  The Applicant puts forth 3 reasons for seeking extension of time.

(a)   That fundamental human rights, ie the right not to be subjected to torture, is involved. It is an absolute and non-derogable right. The court should be concerned with the paramount consideration of whether or not the government will fulfill its obligations under the relevant international law protecting refugees and victims of torture and cruel treatment.

(b)   That he was acting in person at the time these proceedings were commenced and needed time to prepare the documents.

(c)   That this application for leave could only have been made in relation to both the Director’s Decision and TCAB’s Decision once the latter had been issued.  Had the Applicant filed Form 86 prior to the TCAB’s Decision, the Form 86 would have been “thrown at the ground that the Applicant had not exhausted all avenues of redress prior to seeking leave for judicial review”.

31.  With regard to reason (a), a similar argument was rejected in AW v Director of Immigration, §35. Kwan JA held that there was no need to create special principles that are to apply peculiarly to non-refoulement claims.

32.  Reason (b) would not assist the Applicant at all.  He has had 3 months to prepare for filing the Form 86. 

33.  More importantly, reason (c) clearly showed that the Applicant knew that he had an alternative remedy of appeal and made a deliberate decision not to launch this judicial review against the Director’s Decision within time. 

34.  Further, given the substantial and deliberate delay of months, however strong the merits might be, leave to extend time should be refused.  The Applicant would not suffer any prejudice, because his appeal has already been considered afresh by the Adjudicator.

35.  The extension of time sought was an abuse of process and ought to be refused.  The delay alone is again enough to dispose of the judicial review.

(3) Merits of the judicial review or questions of general public importance

36.  I deal with this for completeness’ sake.

37.  The legal principles for judicial review are not in dispute.  The Court plays a supervisory role, and the crucial issues are: whether there was any error of law; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and whether the substantive decision satisfied the enhanced Wednesbury test.  See TK v Jenkins & anor, HCAL 126/2010, 21 October 2011 (per Lam J (as he then was), upheld on appeal), §87; TK v Jenkins & anor [2013] 1 HKC 526(Court of Appeal), §40; Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, §45.

38.  The standard of review is that of “rigorous examination and anxious scrutiny to ensure that the required high standards of high fairness have been met”: Prabakar, §45.

39.  The enhanced Wednesbury test is an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision.  See AM v Director of Immigration & anor [2014] 1 HKC 416, §34.

Ground 1: error of law in interpretation of “severe physical or mental suffering”

40.  The Director accepted that Salahuddin and his people made various verbal threats, including death threats to the Applicant.  The Director did not reject the Applicant’s case that his wife and/or children had been subjected to death threats and harassment by Salahuddin’s people in order to obtain information as to the Applicant’s whereabouts.  Ms Lau submits that the Director erred in not addressing the question as to why threats to a person’s life or a family member’s life failed to meet the requisite level of severity to constitute torture.

41.  The Director did distinguish between physical and mental torture. He did state in §14 of his Decision that there was suffering or injury claimed by the Applicant but it was not severe.  At §28 of the Director’s Decision, it was stated that Salahuddin and his people had never harmed the Applicant other than making threats on him and harassing his wife and son in order to obtain information regarding the Applicant’s whereabouts. Therefore it was not accepted that any severe pain or suffering within the definition of torture under section 37U(1) of the Immigration Ordinance had ever been inflicted on the Applicant in the past.  In my view, the Director was plainly saying that the level of severity required for torture had not been reached and found that the verbal threats and harassment could not amount to torture.

42.  Further, notwithstanding the high standards of fairness, an applicant bears the initial burden of proof.  It is incumbent upon him to put in information and submission on which he intends to rely to prove his case:  ST v Betty Kwan & anor [2013] 3 HKC 87, §47.  He has to put forward some factual basis to prove a case of torture before the Director can be expected to investigate on it:  RS, CACV 206/2012, 20 August 2013, §59. 

43.  As pointed out by Ms Chow, counsel for the Director, the Director did not specifically address mental pain and suffering because this was never the Applicant’s case before the present judicial review. Nor has the Applicant produced any medical evidence to support a case of mental pain or suffering.  That was despite the fact that he was legally represented before the Director.

44.  Ground 1 has no merits.

Ground 2: error of law in regarding state acquiescence and country conditions

45.  Ms Lau makes 3 points:

(a)   That the Director has failed to appreciate that state acquiescence can be passive, and need not be active. When considering the meaning of torture, the Director’s focus was only on the private nature of the Applicant’s dispute with Salahuddin, which was erroneous.

(b)   The Director did not give due regard to the country of origin information and cherry-picked information in favour of the Bangladeshi government and failed to explain why he preferred one set of country of origin information to another.

(c)   The Director failed to make any assessment as to the effectiveness of the police reform and simply stated that there existed (allegedly) police reform.

46.  With the greatest respect to Ms Lau, the Duty Lawyer acting for the Applicant before the Adjudicator had in fact conceded that there was no issue of state acquiescence.  I see no reason why the Applicant can turn round and accuse the Director for not having considered it.  The question of consideration of country of origin materials simply did not arise.  Ground 2 has no merits.

Ground 3: error of law in respect of internal relocation

47.  Ms Lau submits that the Director has failed to explain why he was able to conclude that internal relocation to Chittagong or Dhaka was possible for the Applicant despite the Applicant’s case that he had received a few phone calls from a BNP cadre to look for the Applicant on Salahuddin's order and that the mayor of Chittagong had become a BNP member.  It was not put to the Applicant that he could have moved to Dhaka.

48.  Although the phone calls were not expressly referred to, the important finding of the Director was that on the Applicant’s own account, he had not encountered and was not harmed by Salahuddin whilst staying in Chittagong. There was no challenge to the Director’s view that the Applicant could move there.  Whether or not he could also have safely relocated to Dhaka would not have affected the overall outcome. Ground 3 has no merits.

Ground 4: Was the Director’s Decision a nullity?

49.  In Lewis, Judicial Remedies in Public Law, 5^th ed, §5-007 it is stated that the weight of the authority is to the effect that once the court decides to grant a remedy in judicial review proceedings, the effect of that remedy is to establish that the administrative act or measure is void and incapable of ever having produced legal effects.  The learned editor also went on to say:

“That recognition is, however, tempered by the fact that the invalidity of the administrative act must first be established and secondly, in judicial review proceedings, a court has a discretion to refuse to grant a remedy even if the applicant demonstrates that there has been a breach of one of the principles of public law capable of rendering a decision void. There are also some indications that the courts may, in certain circumstances, recognise the prospective invalidity of an administrative decision or measure, that is, they may declare that a breach of one of the principles of public law has occurred and that the administrative decision or measure is incapable in future of producing valid legal effect but refuse to quash the decision or measure retrospectively and refuse to set aside the legal consequences of any action already taken on the basis of the flawed decision or measure.”

50.  The court has not yet granted a remedy.  These principles do not support Ms Lau’s submission that the Director’s Decision was void.

51.  Even if any of the grounds for judicial review were established, it only meant that the Director had made a number of errors.  A decision void for one purpose (eg ultra vires or breach of natural justice) may still be a valid decision for the purpose of an appeal to TCAB: Calvin v Carr [1980] AC 574, 589G-590C; London & Clydeside v Aberdeen [1980] 1 WLR 182, 203B; Administrative Law, 11^th ed, Wade & Forsyth, footnote 129 at p 250.

52.  Further, the court may not set aside an erroneous administrative decision if, in all the circumstances of the original hearing and the appeal, the procedure as a whole would satisfy the requirements of fairness (“the curative principle”): Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409 (CA), §69. 

“69. The common law has developed a similar doctrine in that the courts have declined to intervene on grounds of procedural unfairness where the impugned decision is subject to correction by a procedure which has proper procedural safeguards [citing, amongst others, Calvin v Carr]. This approach is based in large part on an assessment if, in all the circumstances of the original hearing and subsequent appeal, the procedure as a whole would satisfy the requirements of fairness. “Of particular importance are (a) the gravity of the error committed at first instance, (b) the likelihood that the prejudicial effects of the error may also have permeated the rehearing, (c) the seriousness of the consequences for the individual, (d) the width of the powers of the appellate body and (e) whether the appellate decision is reached only on the basis of the material before the original tribunal or by way of fresh hearing, or rehearing de novo” …”

53.  Another factor is: (f) if applicable, the purpose of the statutory scheme: De Smith’s Judicial Review, 7^th ed, §8‑032.

54.  All of the principles in Wong Tak Wai have been adopted in established authorities for non-refoulement claims, as set out in paragraphs 37-39 above.  Every applicant under a non-refoulement claim faces serious consequences of deportation if he fails.  Applying Wong Tak Wai, the appeal by way of rehearing had proper procedural safeguards, which have been employed by the Adjudicator and which the applicant could not find fault with.

55.  Ms Lau relies on the New Zealand case of Denton v Auckland City [1969] NZLR 256, 267 (lines 15-35)-269 to show that the administrative board had no basis on which it could entertain an appeal because the original decision was void.  With respect, that was a decision in 1968 when the New Zealand court did not have the benefit of the authorities laid before the Hong Kong Court of Appeal in Wong Tak Wai.  And Wong Tak Wai is binding on this court. 

56.  Ground 4 has no merits. 

57.  None of the 4 grounds involve points of questions of general public importance.  No extension of time should be granted.

CONCLUSION

58.  The application for judicial review of the Director’s Decision is seriously out of time by deliberate decision and is an abuse of the process of the court.  I decline to grant extension of time for filing Form 86.  Even if I am wrong, this judicial review should still be dismissed for complete lack of merits.

COSTS

59.  The Applicant has failed on all grounds.  As he has abused the process, I order, nisi, that costs should be to the Director on an indemnity basis, summarily assessed at $400,000.

60.  This case, like many other non-refoulement claims, contained lengthy citation of unchallenged facts taken from the Director’s Decision and established authorities in the Re-Amended Form 86.  Solicitors attempted the first draft, which was settled by counsel.  Counsel later drafted the Re-Amended Form 86, abandoning the judicial review against the Adjudicator’s decision, for reasons not explained in detail.  Duplication in costs between counsel and solicitors is disallowed.

61.  There were voluminous, unnecessary discovery and copied documents.  There were clearly irrelevant materials (such as outline of training programme for CAT adjudicators and DOJ and CVs of trainers).  I do not see who, other than the solicitors, should bear such wasteful copying.

62.  This case did not warrant an anonymity order having regard to the grounds for judicial review.  But for a previous order of costs in the cause, I would have disallowed even the Applicant’s own costs on the application for an anonymity order on such an unmeritorious case.

63.  I disallow costs for making the case appear more complicated or meritorious than it should be.  Much of the costs are common fund costs due to the amendments to the original case; and such costs have been waived.  I summarily assess the Applicant’s own costs at $150,000 for counsel and $80,000 for solicitors.

64.  I thank counsel for their assistance.