MD YOUSUF MIAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1593/2018

[2020] HKCFI 1105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1593 of 2018

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

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 13 July 2018, which dealt with his appeal against the Director’s Further Decision as defined in paragraph 7 below, with the Director of Immigration (“the Director”) as interested party.

The applicant

2.  The applicant is a Bangladeshi national. He arrived in Hong Kong on 29 April 2014 and he lodged his non-refoulement claim with the Director.

3.  In his statements given to the Director, he claimed that if he was refouled to Bangladesh, he would be tortured or killed by Bangladesh Nationalist Party (“BNP”) people because he had joined Jamaat-e-Islami Party and refused to join it. In addition, he feared that he would be arrested by the Bangladeshi police for an alleged murder case.

4.  He was running a confectionery shop in Dhaka. In September 2011, three people of BNP came to ask him to join BNP. He refused. They threatened to frame him up with a murder case. Then they left. Four days later, those BNP people came with two more people. He ran away. They chased him, holding bamboo sticks. They also shouted threats against him. They vandalized his shop. He went to his uncle’s home and stayed there for two days. Later, he had to close his shop. In March 2012, there was a fight between his two neighbours, Rabiul and Dulal. Rabiul was killed. He and his uncle Nuru was present at the scene. They were wrongly accused of having committed murder by police. In July 2012, he was charged by police for murder of Rubiul. A warrant was issued for his arrest. He and his family members moved to Madhya Para where he stayed for two years. Nuru was arrested and was on bail. He came to Hong Kong through China.

The Director’s Decisions

5.  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.     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.     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”); and

d.     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”).

6.  By Notice of Decision dated 7 July 2014 (“the Director’s Decision”), the Director rejected his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of harm from the BNP people was low if he returned to Pakistan [11]; that state protection would be available to him [15] and that internal relocation was an option open to him [17].

7.  By Notice of Further Decision dated 5 January 2017 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk as he had failed to establish his case on evidence.

The Board’s Decisions

8.  The applicant appealed to the Board in respect of the Director’s Decision. However, he was out of time. The Director’s Decision was delivered on 7 July 2014. The deadline for the applicant to file his appeal with the Board as under section 37ZS of the Immigration Ordinance, Cap.115 (“the Ordinance”) is 21 July 2014 (14 days from the date of the Director’s Decision). The applicant filed his appeal on 14 August 2014. He was 3.5 weeks late.

9.  The applicant applied for extension of time for filing his appeal. He explained that he did not write English and he had to wait for his friend to assist him. The Board refused to accept his reason. It found that there was no action on the part of the applicant. However, the Board said that for the sake of completeness, it would consider the applicant’s case because if there was arguable merit, it might grant him extension of time. Having considered the merit of his case, it refused to grant him extension of time. The Board held that the applicant’s appeal was a nullity and it had no jurisdiction to consider it.

10.  On the merit of his case, the Board found that there was no evidence that the applicant would be subject to a real or foreseeable risk if he returned to Bangladesh [18]; that the applicant failed to establish Torture risk [25]; that the applicant failed to establish BOR 3 risk [30]; that the applicant could relocate himself [31]; and that the applicant failed to establish Persecution risk [35].

11.  The applicant also appealed to the Board in respect of the Director’s Further Decision. However, his application was also out of time because the Director’s Further Decision was made on 5 January 2017, the deadline being on 19 January 2017. He filed his appeal on 16 February 2017. He applied to the Board for his appeal of the Director’s Further Decision out of time. He explained that he did not receive the Director’s letter asking him to provide further information because he had changed his address without informing the Director. The Board did not accept his explanation.

12.  By the Board’s Further Decision, the Board refused to grant extension of time to the applicant for his appeal of the Director’s Further Decision.  The Adjudicator had also taken into consideration that the applicant had no further or additional facts in support of his case.

13.  In his Form 86 filed on 9 August 2018, the applicant only asked for leave to apply for judicial review of the Board’s Further Decision.

14.  In his affirmation in support of his application dated 9 August 2018, the applicant relied upon the following grounds:

1.     the Board was in breach of procedural fairness;

2.     the Board failed to have greater care and duty owed to a self-represented claimant;

3.     the applicant was not given an oral hearing; and

4.     the applicant was not invited to submit written submissions.

DISCUSSION

15.  The applicant appeared before me. He confirmed that he only applied for leave to apply for judicial review of the Board’s Further Decision.

16.  Grounds (1) and (2) are his opinions without any evidence in support of them. They fail.

17.  Under section 12, Schedule 1A of the Ordinance, the Board has power to assess the appeal without a hearing if it is satisfied that appeal could be justly determined without a hearing. The Board did not accept his explanation for being late in his appeal and had also considered the merits of his case, including the facts of his case in its previous decision rejecting his appeal against the Director’s Decision dated 7 July 2014. Ground (3) fails.

18.  Ground (4) does not sustain because high standard of fairness requires the applicant to take the initiative to decide whether he should make written submissions to the Board. The applicant cannot sit back and requires the Board to guess whether he would make written submissions for his application.

19.  The applicant fails to show that he has any reasonable chance of success in his proposed judicial review.

CONCLUSION

20.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

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