KAMRUL HASAN ALIAS PARVES MIAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2207/2018

[2020] HKCFI 77

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2207 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 refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Bangladesh who last entered Hong Kong illegally on 14 August 2007 and was arrested by police on 9 May 2008.  After he was charged and subsequently convicted of the offence of illegally remaining in Hong Kong and had served 15 months’ imprisonment, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of rival political party Bangladesh Nationalist Party (“BNP”) and/or by his creditor for failing to repay his loan.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village South Charta Thirapukur Par, Comilla District, Bangladesh where his family ran a butcher shop.  After leaving school he followed his family’s footsteps to become a supporter of the political party Awami League (“AL”),and first worked in a shoe factory and later ran his own garment business with a loan from some local money-lenders repayable by monthly instalments with interest.

3.  In his home village there were some BNP supporters trying to extort money from the local shops including his family’s butcher shop, and when his family refused or was unable to satisfy their demands, they would damage things in their shop and threaten his family including the Applicant with violence, but of which they were afraid to seek help from the police.

4.  One day in December 1996 when the Applicant and his family were celebrating AL’s victory in winning the general election to become the ruling party, they were attacked by some BNP supporters who also burnt down the local AL office and attacked other AL supporters until the police arrived to disperse and arrest them.

5.  On another occasion in 2006, more than 200 BNP supporters ambushed and attacked a much smaller group of AL supporters including the Applicant that he was knocked unconscious and fell onto the ground, and was subsequently brought to the local hospital for treatments to his head injury.

6.  After his discharge from the hospital, the Applicant fled from his home village to take shelter in his friend’s place in neighbouring Village Choara, but as he was unable to carry on with his business and hence to keep up with his loan repayments, and when he heard that those BNP supporters were still looking for him everywhere as well as his creditors chasing him for repayment of his loan with threats of violence, he decided that it was no longer safe to remain in Bangladesh, and so in February 2006 he departed for Hong Kong where he overstayed but did not raise any claim, and was subsequently arrested by police and repatriated in October 2006 to Bangladesh.

7.  Upon his return to his home village, he continued to receive threats from those BNP supporters and was involved in several fights with them, and as he was still being chased by his creditors for repayment of his loan, the Applicant departed again in August 2007 for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection with the Immigration Department, for which he completed a Non-refoulement Claim Form on 31 July 2014 with legal representation from the Duty Lawyer Service.

8.  Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police in 2012 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 20 months, and upon his discharge from prison, he failed to report recognizance to the Immigration Department.

9.  By a Notice of Decision dated 12 August 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the risk of harm from those local BNP supporters or his creditors to the Applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those BNP supporters or his creditors to locate him.

11.  By a Notice of Further Decision dated 30 November 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

12.  On 5 May 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions, but before it was heard by the Board, the Applicant on 21 November 2017 wrote to the Board to request to withdraw his appeal as it was safe for him to return to his home country.

13.  By a letter dated 23 November 2017 the Board acknowledged receipt of the Applicant’s request, and informed him that his appeal was therefore accordingly dismissed, and that the Director’s decisions of 12 August 2016 and 30 November 2016 were confirmed.

14.  However, on 25 June 2018 the Applicant in writing to the Board requested to re‑open his appeal with the Board as his life would still be at risk in his home country and therefore he could not go back.

15.  By a letter dated 29 June 2018 the Board informed the Applicant that having already dismissed his appeal, and as the matter had already been disposed of and the Board was functus officio in relation to his appeal, his request to re-open his appeal could not be acceded to. 

16.  On 11 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he asked for a reversal of the Director’s decision on his non-refoulement claim but without providing any particulars or specifics or elaboration as to why it should be so.

17.  Be that as it may, I agree with the Board that having already dismissed the appeal upon a valid withdrawal at the request of the Applicant, it is functus officio and has no jurisdiction to further deal with the appeal, as held by Deputy High Court Judge K W Lung in Re Das Purnima Rani [2019] HKCFI 308, HCAL 941/2018, and upheld on appeal by the Court of Appeal on 13 June 2019, [2019] HKCA 669, CACV 85/2019, when Lisa Wong J in giving the judgment of the Court referred to another judgment approved by the Court of Deputy High Court Judge Kent Yee in HT (Hussain Tasawar) v Betty Kwan [2017] 2 HKLRD 567 and stated as follows:

“ 41. Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36] – [40] and [47] – [48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise,not only would there be no finality in the determination of such claims,much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2)if he can fulfil the requirements in sub-ss (a) and (b) thereunder.

43. On the other hand, where a withdrawal or abandonment is invalid,it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the board can and should resume processing the same upon the claimant’s application.  Quite apart from the nullifying effect of an invalid withdrawal/abandonment, this conclusion also appears to us to follow from applying the high standard of fairness required in handling non-refoulement claims.”

18.  In the Applicant’s letter of 21 November 2017 to the Board to request for withdrawal of his appeal, which was written in English and appears to be from his own hand as evidenced by the various other letters from him to both the Board and the Court,this is what the Applicant said:

“ I, Kamrul Hasan Parves Miah, would like to withdraw my appeal/petition,I am safe to return to my country Bangladesh. Name of country – Comilla. My application for withdrawal is made freely and I understand the consequence of the proposed withdrawal.”

19.  In its letter dated 23 November 2017 the Board accepted the Applicant’s claim that it was safe for him to return to his home country as a valid or good reason for his proposed withdrawal of his appeal, and accordingly acceded to his request and dismissed his appeal.

20.  In his subsequent letter dated 25 June 2018 of his request to re-open his appeal, which appears to be written by someone else on his behalf as he was then being detained at Lai Chi Kok Reception Centre, the Applicant gave the following reasons:

“ … Previously I requested to withdraw my torture claim to go back to my country. During my incarceration in Lai Chi Kok Reception Centre, I was visited by my family friends who informed me that I should not go back to my country because my life is at risk there. So I hereby request to your kind office to re-open my case because I don’t want to take risk of my life to go back to my country. I’ll thankful to you for this act of kindness.”

21.  Applying the principles referred to above, I do not read this letter from the Applicant to the Board as contesting the validity of his earlier withdrawal of his appeal to the Board against the Director’s decision.  It seems clear to me that the Applicant did make a deliberate and informed decision in November 2017 to withdraw his appeal.  His alleged subsequent information from his family friends that he would still be at risk in his home country which caused him to change his mind about his appeal could not, in my view, invalidate his earlier withdrawal of his appeal before the Board. 

22.  For these reason, the Board was correct to find that it has no jurisdiction to re-open the Applicant’s appeal after having validly dismissed it at his request.  In the premises I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of the Board’s decision, and accordingly I refuse his leave 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