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HCAL 1749/2018
[2021] HKCFI 76
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1749 of 2018
BETWEEN
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Almas |
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 P. Li:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant entered Hong Kong from China on 17/7/2006 with a valid passport. He was allowed to stay for 14 days as a visitor. He overstayed until he was arrested on 16/3/2008. He filed a CIDTP claim on 5/4/2008 and was granted bail.[1] He claimed to be in fear that he might be killed or harmed by people from the Awami League (‘AL’) as he supported the opposition Bangladesh Nationalist Party (‘BNP’).
2. His claim was treated as a non-refoulement claim upon the commencement of the USM on 3/3/2014. [2]
3. The non-refoulement claim was dismissed by the Director on 7/7/2015. His appeal to the TCAB was dismissed on 15/3/2017.
4. In the interim, the Director invited the applicant to file further evidence in relation to BOR 2 claim on 5/4/2017. The applicant did not respond. The Director dismissed the BOR 2 claim on 21/4/2017 based on the available information.
5. The applicant filed a notice of appeal to the TCAB on 8/6/2017. By then, he was about 4 weeks out of time. The adjudicator refused the late filing. [3]
6. The applicant filed the leave application for judicial review on 27/8/2018. He only sought leave to review the decision of the TCAB dated 15/3/2017 [4]. He was about 14 months out of time. In his Form 86 and affirmation, he did not seek extension of time for the leave application. There was no explanation about the late application.
7. This court fixed a hearing on 24/11/2020 on the applicant’s request. The notice of hearing was sent to his last known address by registered mail. There was no return of mail. He was absent from the hearing. This court proceeded to consider his claim on paper.
Background
8. The applicant was born on 1/2/1975. He was from village Ramzanbeg, District Munshiganj, Bangladesh. He had not received any education. He was married. He last worked in a cattle farm. He joined the BNP around 1996. He attended BNP rallies and meetings. He was also active in canvassing votes for BNP.
9. His family also supported BNP. His father and uncle were mediators in the disputes among villagers. His family was well respected in the neighbourhood.
10. From 2004 onwards after AL seized power, he was repeatedly harassed or even assaulted by members of AL in the village. The assailants included Delawar, Sipon, Faruk (“D/S/F”). He was attacked several times.
1st incident
11. One day in April 2005 at a tea stall, D/S/F and some others approached. They accused him of failure to attend AL meetings. They punched and kicked him. His father and uncle came to his rescue and a fight ensued. The D/S/F group fled. He was hospitalized for 3 days. He sustained some bruises, swellings and abrasions. It took about 15 days to recover.
12. The next day, he reported the attack to the local police station. However, the officer-in-charge refused to register the complaint. He was told to leave. He believed the AL people had influenced the police though he had no evidence.
13. D/S/F were AL members. They were close to the chairman and ministers of AL. They attended AL meetings. He believed that D/S/F were paid to assault others.[5]
2nd incident
14. One day in April 2005, while he drove his son to the hospital, D/S/F and others rushed out from the AL club and attacked him for about 3 minutes. They accused him of failure to attend and promote AL meetings. His uncle and some BNP members came out from the BNP club which was on the opposite side of the road. The D/S/F group fled. His uncle rescued him and took him to the hospital. He sustained some bruises and swellings over his body. He was not hospitalized.
15. The next day, he reported the attack to the local police station. The officers refused to register his complaint. They told him to leave. [6]
16. He heard about other BNP members being assaulted by D/S/F. He did not know the identities of the victims.
3rd incident
17. One day in May 2005, he was on his way to his uncle’s restaurant at Munshirhat Bazar. He was confronted by D/S/F and others. One of them carried a knife. They punched and kicked him. His uncle came to his rescue. The assailants fled. He had some bruises and swellings. He did not seek treatment. He recovered in 15 days. He believed he was assaulted for not attending AL meetings. His uncle told him not to report as AL had influence over the police. He could not afford a bribe.[7]
4th incident
18. One day in February 2006, D/S/G and others came to his home. Some of them carried knives, hockey sticks and choppers. His wife tipped him off. He was able to escape through the back door.
19. Sometime afterwards, his wife told him not to return home as D/S/F and others came to ask about him from time to time.
20. He took a bus to Dhaka Sadar and stayed with his in-laws for about 4 months. He then went to Narayanganj and stayed with his sister for a few weeks. He also went to Solani and stayed with another sister for a few days. He did not encounter D/S/F during this period.
21. When he finally returned to Dhaka, his in-laws advised him to go to Hong Kong. An agent arranged him to leave Bangladesh in July 2006. He did not encounter any problem. He stayed in China for about 12 days before coming to Hong Kong.
22. He did not know how to file a torture claim until he was arrested by the police in 2008. After he came to Hong Kong, he had no contact with his family. He did not know if D/S/F still looked for him.
23. He thought D/S/F was still interested in locating him. He learned from the news that AL and the police had been attacking supporters of BNP and other political parties. [8]
24. He did not think it would be safe to stay in Bangladesh as D/S/F would be able to locate him one day. He disagreed that there was improvement in the police. There were killings by the Rapid Action Battalion forces from time to time. He insisted that corruption was even worse since he left Bangladesh. [9]
25. His uncles would not be able to assist him as they lived far away. His brother had to flee Bangladesh around 2000 to Kuwait for similar problems. The AL people used to harass his father as he was a BNP member. They did not do so any more as he was old.
26. He learnt from other Bangladeshi contacts visiting Hong Kong that his son was working in Singapore. The AL people tried to extort money from his son when he returned to Bangladesh around 2013 using the applicant’s problem as an excuse. His son felt unsafe and went to Singapore again.[10]
The Decision of the Director
27. The Director pointed out the following to conclude that the level of risk of harm from D/S/F and AL was low [11]:
a. The applicant claimed to have been attacked and threatened by D/S/F and others for 4 times between April 2005 and February 2006. In the first 3 incidents, his injuries were not serious. In the 4th incident, he was able to escape. These attacks were not frequent and he did not even seek treatment in the 3rd incident. It was not accepted that he had sustained serious injuries amounting to “a minimum level of severity”.
b. It was about 9 years since he left Bangladesh. There was no information that D/S/F were still looking for him. Given the lapse of time, the claimed risk of ill-treatment should have dissipated.
c. There was no information as to the position of D/S/F in AL. He alleged that they were paid to attack BNP members. It was his speculation and there was no evidence in support.
d. There was no evidence that the AL members were linked to the government. There was no evidence of State involvement. There was no evidence that the conduct of D/S/F was instigated or encouraged by the State.
e. There were COI reporting widespread corruption and police abuse of power and incompetence. The government and politicians were biased against political opponents. On the other hand, there were COI which showed objective improvement in recent years. There was a police reform program (PRP) which aimed to improve police efficiency. The Police Internal Oversight unit was created to tackle corruption and abuse. In fact, the government was reported in taking action against police officers and RAB for abuse of power. The conduct of the police officers in the local police station was not sufficient to establish that it was the general pattern of the Bangladesh police force in general.
f. The applicant asserted that the AL leaders had influenced the police. There was no evidence in support. On the other hand, there were news reports that the government had been taking action against political violence. AL and other political groups were arrested for breaking the law. The Director found there was reasonable State protection.
g. The Director found that there was reasonable opportunity for internal relocation. The law permited internal movement. Bangladesh was a large country with a large population. Dhaka was a possible option. Given that that the influence of D/S/F was localized, it would not be unduly harsh for him to relocate given his age. In fact, the applicant was safe when he stayed in Dhaka Sadar for several months.
28. The Director also pointed out the following which affected the applicant’s credibility. The Director concluded that he was not reliable:
a. He was inconsistent as to whether he reported to the police after the 2nd incident. See paragraph 15 and footnote 6 above.[12]
b. He was inconsistent as to whether he reported to the police after the 2nd incident. See paragraph 17 and footnote 7 above.[13]
c. He submitted 3 discharge certificates to the Director but only received treatment in the 1st and 2nd incidents. He explained he did not remember in detail whether he had been hospitalised.[14]
d. He was not educated and only responsible for canvassing votes during elections. It was difficult to explain why D/S/F were so keen to secure his attendance in AL meetings.[15]
e. He delayed for 20 months before lodging the non-refoulement. He did not make any enquiry despite he was with his friends. The delay was inconsistent with a person who had imminent fear of being harmed or killed.[16]
29. The Director had considered the documents submitted. There were 3 discharge certificates. All of them recorded that the applicant stayed in hospital for a few days respectively. Except the 1st incident, the certificates could not support his evidence. In addition, there was no mention about the cause of the injuries. Even assuming that the discharge certificates were genuine and taking into consideration the evidence as a whole, there was low risk of harm. [17]
30. For the claim under BOR 3, the Director found no evidence of ill-treatment amounted to ‘a minimum level of severity’. The evidence did not support a genuine and substantial risk of ill-treatment if returned to Bangladesh.
31. For persecution risk, the dispute between the applicant and D/S/F was private and personal. The applicant was not within any category of persons vulnerable to persecution risk according to the Refugee Convention. This claim failed.
32. For torture risk under s 37U (1) of the Immigration Ordinance, the applicant had not suffered severe pain and suffering as defined. There was no consent, instigation or acquiescence from a public official. The conduct of D/S/F could not be regarded as that of the leaders of the AL. Having considered the COI, the Director did not think there was a consistent pattern of gross, flagrant or mass violations in Bangladesh. The applicant was not personally at risk.
33. The Director invited the applicant to file further evidence in relation to BOR 2 on 5/4/2017. There was no response. The Director considered the available evidence and concluded that the applicant would not be in real risk of arbitrary deprivation of life. The Director rejected the claim under BOR 2.
34. The Director dismissed all claims by 2 decisions on 7/7/2015 and 21/4/2017.
The Decision of TCAB
35. The applicant attended the oral hearing fixed on 12/4/2016. He adopted the TCF and SCF, the 2 records of the screening interview and the notice of appeal. He also gave evidence.
36. The adjudicator pointed out the important aspects of the applicant’s evidence as the following: [18]
a. The applicant said he did not intent to come to Hong Kong but his agent left him in Hong Kong. This was inconsistent with his NCF. He then explained that his plan was to go from Hong Kong on to Singapore. His agent told him that he could not work in Singapore. The agent said he could stay in Hong Kong. He was in politics and came here for his safety.
b. He would stay illegally in Hong Kong as long as possible. He did not know about any help available in Hong Kong.
c. The AL was in power for a second term from 2014. There was no need for D/S/F to attack him. He then said his Bangladeshi friend told him the AL threatened to burn down the village if AL candidate did not win.
d. He believed the AL members still attacked other people. He was in fear of them.
37. The adjudicator had considered various COI. He concluded that Bangladesh was a violent country riddled with corruption. However, there was no consistent pattern of mass violation of human rights. The use of police power was against more prominent members of other political parties, not the lower ranking ones.
38. The adjudicator commented on the credibility of the applicant as follows:
a. In 2001, the BNP was in power. There was political unrest towards the end of the term in 2006. A caretaker government was installed in December 2006. It could not be right, as the applicant claimed, that the 4 incidents of assault occurred during the caretaker government which only existed in December 2006. It was only by the end of 2008 that AL took power.[19]
b. If the applicant had already been beaten up several times, there was no reason for the AL people to mount a potential murderous attack on him. The 4th incident was not credible.[20]
c. The applicant said he intended to go to Singapore en route Hong Kong. This was inconsistent with his original story that he came to Hong Kong for protection.
d. The applicant delayed the application for protection for over 18 months until he was arrested for overstaying. Ignorance could not be a satisfactory explanation. It was also unbelievable that none of his friends was aware of torture claim scheme.[21]
e. About 10 years had elapsed, the applicant had no direct information as to the situation in Bangladesh. He only heard from unknown sources. There was no evidence that any threat about burning the village had been carried out.
f. The 2 documents from the BNP District Branch Chairmen could prove his membership and that he had been beaten up by AL supporters. There was nothing specific in them. The latter one based on information supplied by his father. It appeared to be composed to order. [22]
g. The 3 hospital certificates were not from contemporaneous records. They were not specific about the exact causes of the injuries. The length of hospitalization was inconsistent with the applicant’s evidence. [23]
39. Given the above, the adjudicator found that it was not probable that the applicant came to Hong Kong to seek safety.
40. The adjudicator rejected the appeal on 15/3/2017 as follows:
a. Even accepting that he was beaten up several times at a public place, this was not sufficient to establish torture envisaged under the CAT. Given the lapse of time, the likelihood was very low that D/S/F would still target him. There was no State involvement. Nor was there any consent, instigation and acquiescence by any public official. The applicant was not prominent member of BNP, the AL had no reason to target him. There was no real and personal risk of torture. This claim failed.
b. The adjudicator found that the applicant did not face a genuine and substantial risk of ill-treatment. There was no real risk of CIDTP under BOR 3 risk.
c. The applicant was not a prominent member of BNP. The AL would not target him. The adjudicator pointed out that there was no risk of harm based on Convention reasons. This claim failed. [24]
41. In relation to the further decision by the Director dated 21/4/2017, the applicant filed a notice out of time on 8/6/2017. He claimed that he only received the further decision on 5/6/2017.
42. The adjudicator commented that the applicant failed to give any explanation as to why he received the further decision on 5/6/2017. The adjudicator reiterated the reasons for rejecting the claim in the previous decision dated 15/3/2017. The applicant’s claim was of no basis. It would not be unjust to refuse the late filing.
Judicial Review
43. The applicant filed the leave application for judicial review on 27/8/2018. He was about 14 months out of time as the decision of the TCAB was given on 15/3/2017. In the Form 86, he only sought to review the decision of TCAB dated 15/3/2017. He did not apply for extension of time for the leave application.
44. In the Form 86, the applicant raised three major grounds as follows:
a. Irrationality [25]
i. He complained that the adjudicator failed to consider relevant COI. The COI were outdated.
ii. In his decision dated 15/3/2017, the adjudicator specifically mentioned that he had considered the COI listed in the appendix of the Director’s decision. Some of the COI were from the US State Department, US Central Intelligence Agency, UK Home Office, The Asian Human Rights Commission and Odhikar Human Rights Report. They were from authentic sources. The Director visited those websites in June 2015.
iii. There were News websites including Bangladesh news and Dhaka Tribute. It was difficult to assess the reliability of these news agencies. However, they were only used to corroborate the authoritative findings of those in (ii).
iv. Although the most updated COI were not referred to, there is no evidence that the situation in Bangladesh has deteriorated since 2015. The applicant, who bore the burden of proving his claim, could only made general criticism in this respect. Had there been any relevant information, the applicant should have sufficient time to raise it during the hearing with the TCAB in April 2016.
v. It is ironic that the applicant pointed out in another part of the Form 86 that the adjudicator should considered USHR 2010 and USRF 2010 which were outdated.[26]
vi. In any event, the adjudicator found that the applicant was unreliable. There was no basis that he was targeted by AL supporters. It was not probable that the applicant came to Hong Kong to seek safety. State protection was not an important factor.
vii. In my judgment, it is reasonable for the adjudicator to rely on the information in the appendix. There is no substance in this ground.
b. Procedural impropriety/unfairness [27]
i. The applicant complained that the adjudicator failed to obtain further COI in relation to the human rights situation in Bangladesh. He suggested three websites which should have been considered in assessing State protection.
ii. As mentioned by the Court of Appeal, the assessment of a claim should be one of joint endeavour. It would not be appropriate for either party to sit back and let the other party prove or disprove the claim. The applicant was assisted by the DLS, he should have filed relevant information with the Director and TCAB.
iii. The applicant pointed out 3 websites in 2010 and 2011. They are even more outdated than those considered by the adjudicator which were last accessed in 2015. In any event, the relevant time is the time of assessment by the TCAB.
iv. A fair reading of the decision of the TCAB shows that the adjudicator had considered the COI carefully before coming to the conclusion that there was State protection.
c. Procedural impropriety/unfairness [28]
i. The applicant complained that he was not legally represented in the TCAB. He only had a few days to prepare. The appeal bundle was in English. The applicant pointed out that he could not understand the written skeleton argument of the Director in the hearing bundle. No psychologist or psychiatric report was considered by the adjudicator.
ii. The bundle consisted of the NCF and records of the screening interview. The applicant was assisted by the DLS in preparing the NCF and in the interview. He must be familiar with the contents. The decision of the Director was sent to the DLS. It must have been translated to him. The short notice, even if accepted, would not give rise to unfairness. There is no duty on the part of the Director to supply translated documents.
iii. There was no sign that the applicant was suffering from any mental illness which warranted calling expert reports. He did not raise any request.[29]
iv. The argument of the Director set out in the skeleton must have been translated to him during the hearing at the TCAB. Had there been any difficulties, he should have sought assistance from the adjudicator during the hearing.
TCAB Appeal
45. Although the applicant had not specifically referred to the further decision of the TCAB dated 27/10/2017, I have considered whether there is any error in refusing the late filing of the notice of appeal.
46. In the further decision, the adjudicator pointed out that the applicant should have explained in more detail why he only received the Director’s decision on 5/6/2017. It was more than a month after the Director’s decision dated 21/4/2017.
47. The adjudicator reiterated that there was no basis for the AL to attack or target the applicant. Given this findings, the BOR 2 ground would have been dismissed in any event.[30]
48. In my judgment, the adjudicator was right to refuse the late filing given the circumstances. There was no error of law and procedure.
Out of Time Leave Application
49. As mentioned above, the applicant was out of time for about 14 months. He should have first sought an extension of time for the leave application.
50. In considering whether there is good reason for the delay, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [31] The applicant did not apply for leave within 3 months as required under the law, he did not provide any explanation for the delay.
51. I agree with the decision of the TCAB. There is no merit in the applicant’s claim given the evidence. In my judgment, there is no error of law and procedure. The decisions of the Director and the TCAB are reasonable.
Conclusion
52. In the circumstances, there is no good reason for extending the time for the leave application. I refuse leave to apply for judicial review.
Dated the 13th day of January 2021.
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(Mike Mak) |
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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 13 January 2021
Almas
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 13 January 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1905/15/7/89/B259 & BOR 726/17/6/43/B74
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1212/08 & RBCZ 9001285/17 (Formerly RBCZ/806/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director, dated 7/7/2015, §§8-10.
[2] On torture risk, BOR 3 and persecution risk. Decision of the Director, dated 7/7/2015, §§1-4.
[3] Further decision of TCAB, dated 27/10/2017, §§9, 19-21.
[4] There was a further decision of TCAB on 27/10/2017.
[5] Decision of the Director, dated 7/7/2015, §§7.13-7.15.
[6] Decision of the Director, dated 7/7/2015, §§7.16-7.21. In §7.21.1, his evidence during the 2nd interview was that he did not report this attack to the police. It was a small matter and no serious injuries. The seniors from BNP advised him not to report as the police would not take action.
[7] Decision of the Director, dated 7/7/2015, §§7.22-7.25. In §§7.25.1-7.25.2, his evidence during the 2nd interview was that he reported to the police but they did not register his complaint. He thought the police would not accept any report against AL. When the inconsistency was pointed out to him, he explained that he could not remember. He then stuck to the version that his uncle told him not to report.
[8] Decision of the Director, dated 7/7/2015, §§7.26-7.37.
[9] Decision of the Director, dated 7/7/2015, §§7.38-7.42.
[10] Decision of the Director, dated 7/7/2015, §§7.43-7.46.
[11] Decision of the Director, dated 7/7/2015, §§14-19.4.
[12] Decision of the Director, dated 7/7/2015, §20.1.
[13] Decision of the Director, dated 7/7/2015, §20.2.
[14] Decision of the Director, dated 7/7/2015, §20.3.
[15] Decision of the Director, dated 7/7/2015, §21.1.
[16] Decision of the Director, dated 7/7/2015, §21.2.
[17] Decision of the Director, dated 7/7/2015, §35-39.
[18] Decision of the TCAB, dated 15/3/2017, §§39-42.
[19] Decision of the TCAB, dated 15/3/2017, §§46-47.
[20] Decision of the TCAB, dated 15/3/2017, §§48.
[21] Decision of the TCAB, dated 15/3/2017, §§50-52.
[22] Decision of the TCAB, dated 15/3/2017, §54.
[23] Decision of the TCAB, dated 15/3/2017, §55.
[24] Decision of the TCAB, dated 15/3/2017, §§58-72.
[25] Form 86 dated 27/8/2017, page 17.
[26] Form 86 dated 27/8/2017, page 18.
[27] Form 86 dated 27/8/2017, page 17-18.
[28] Form 86 dated 27/8/2017, page 18-19.
[29] Form 86 dated 27/8/2017, page 17, §7.
[30] Decision of the TCAB, dated 27/10/2017, §§16-20.
[31] [2020] HKCFA 22, para 37.
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