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

HCAL 375/2021

[2025] HKCFI 1256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 375 of 2021

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 18 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 30 September 2020 (the “2^nd Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 June 2017 (the “2^nd Notice”), refusing his application for non-refoulement protection under BOR 2 Risk[1] ground.

Late application

2.  Under Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. As the leave application was filed almost six months after the Decision sought to be reviewed was made, it was almost three months out of time. Leave to file the leave application out of time is required.

3.  In AW and Director of Immigration & Anor[2], the Court of Appeal held that in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account:

(1)  length of delay;

(2)  explanation for the delay;

(3)  merits of the intended application;

(4)  prejudice to the applicant vis-à-vis that to respondent if an extension of time is refused or granted; and

(5)  whether the application raises any question of general public importance.

Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[3] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that leave may be refused on this ground alone.

4.  The Applicant’s explanation for the delay is a bare assertion that he had never received the Decision. He said he was only informed of the Decision when he reported his recognisance at the Immigration Department. Then, he went to the secretariat of the Board to obtain a copy and he filed the leave application about two weeks afterwards. Working back from the date of his filing of the leave application, he would have been informed of the Decision by the immigration officer on or about 11 March 2021.

5.  The address he gave in his Notice of Appeal to the Board and to the Immigration Department was at Tai Tong Road, Yuen Long. Having checked the documents discovered from the Board, the Court is satisfied that the Decision had been sent to the Applicant by post to his correct address, which he gave to the Board. According to his recognisance form (Form No. 8), he had to report his recognisance once every four weeks. There were at least 23 weeks between 30 September 2020 when the Decision was issued and 18 March 2021 when he filed the leave application. He would have been to the Immigration Department to report his recognisance three or four times before he was alerted of the Decision in his third reporting. Refoulement must be top in the Immigration Department’s list of priorities. There was no reason why the immigration officer did not inform him about his Decision in his three or four earlier reporting. On the other hand, the delivery service of Hong Kong Post is usually very reliable. On balance, I find his explanation incredible when tested against this very reliable postal service. It would be too much of a coincidence that the immigration officers had failed to alert him three or four times before he was informed of the Decision in his reporting in February or March 2021. I do not accept his explanation.

6.  On the above finding, extension of time to file the leave application may be refused on the authority of the Court of Final Appeal decision in Po Fun Chan v Winnie Cheung. However, out of extreme caution, the Court also considers the merits of his leave application below.

Background

7.  The Applicant is a Bangladeshi national, now aged 38. He arrived in Hong Kong as a visitor on 24 August 2006 and overstayed since 9 September 2006. He applied for refugee status with the Hong Kong office of the UNHCR on 15 September 2006. He then lodged a non-refoulement claim form (“NCF”) on 20 May 2014. In due course, his non-refoulement claim was assessed on all three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[4]; BOR 3 Risk[5]; and Persecution Risk[6] ground. His application was rejected by the Director’s Notice dated 17 September 2014 (the “1^st Notice”). His appeal against the 1^st Notice was dismissed by the Board’s decision dated 23 July 2015 (the “1^st Decision”). The decision in the 1^st Decision is now final.

8.  Then, by a letter dated 23 December 2016, the Director invited the Applicant to submit further information, if he has any, relevant to his claim under the provisions of BOR 2 on or before 6 January 2017. The Applicant did not provide any. On 16 June 2017, the Director issued the 2^nd Notice dismissing his claim under BOR 2 Risk ground. The Applicant appealed the 2^nd Notice. His appeal was dismissed by the Board constituted of the same adjudicator as the one which made the 1^st Decision. The Applicant now seeks leave to apply for judicial review of the 2^nd Decision.

The Applicant’s case

9.  As the Applicant tendered no additional information or evidence in relation to his claim under BOR 2 Risk ground, his claim under the four applicable grounds arose out of the same set of facts. Back in 2004, when he was 17 years old and studying in college, he became a member of the Chattra League (“CL/AL”), which is the student wing of the Awami League (the “AL”). At the time, the AL was the ruling political party in Bangladesh.

10.  Towards the end of June or July 2005, the Applicant and some CL/AL members had a confrontation with some members of Chatra Dal (“the CD/BNP”) which is the student wing of the Bangladesh Nationalist Party (the “BNP”). The confrontation ended in a fight. The Applicant’s group was outnumbered and beaten with bamboo by the CD/BNP members (the “First incident”). The Applicant suffered some bruises.

11.  A year later, the Applicant and three CL/AL members ambushed four CD/BNP members and beat them with wooden sticks for around 5 to 7 minutes (the “Second Incident”). For fear of revenge, the Applicant fled to various cities for a brief period and eventually came to Hong Kong in August 2006.

The Board’s finding in the 1^st Decision

12.  The Board assessed the Applicant’s claim on the basis of the case as he asserted. It found the First Incident was no more than a minor scuffle between members of opposing political groups at college which was not usual, given the volatile nature of politics in Bangladesh; and that the Second Incident occurred for reasons of personal revenge by the Applicant and his friends. The Board was not persuaded that the four former CD/BNP members assaulted would still have any adverse interest in, or enmity towards, the Applicant arising out of a single instance of assault which occurred so long ago. It was not persuaded, even to the low standard applicable, that the Applicant would be subjected to ill-treatment at the hands of the former CD/BNP members or at all. Applying the law applicable to non-refoulement protection, it was not satisfied that the Applicant had established the factual basis to support a claim for protection under the three applicable grounds then considered.

The Board’s finding in the 2^nd Decision

13.  Obviously, the Board had knowledge of the Applicant’s background, his case and its 1^st Decision as summarized above. It considered the Applicant’s claim under BOR 2 Risk ground could be justly determined without a further hearing.

14.  It was satisfied that the Applicant had been afforded ample opportunity to submit information to support his claim under BOR 2 Risk ground and he had not submitted any further information. After considering the evidence submitted by the Applicant and the submissions made on his behalf in the previous hearing and the fact that the Applicant did not submit any new information in relation to his claim under BOR 2 Risk ground, the Board found there is nothing which might cause it to change its determination in relation to the general credibility of the Applicant as set out in the 1^st Decision. Then, it found on the totality of the evidence, the Applicant had failed to establish, even to the low standard required, that there is a real risk, or a real chance that he would be liable to be arbitrarily deprived of his life, in contravention of BOR 2, if he is refouled to Bangladesh. Hence, it dismissed his appeal and confirmed the decision of the Director in his 2^nd Notice.

Legal principles applicable to judicial review

15.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

16.  In his supporting affirmation, the Applicant advanced five grounds of application.

17.  First, he complained that his claim under BOR 2 Risk ground was determined without an oral hearing and he was deprived of the chance to prove his claim. The Board’s decision to make a determination without a hearing was made pursuant to paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“The Guide”). That paragraph permits the Board to do so after having taken into consideration the general principles and considerations stated in paragraphs 11.1 to 11.6 of The Guide. Paragraphs 11.1 to 11.6 are about general principles applicable to the holding of oral hearing as a question of procedural fairness and the high standard of fairness. While noting in particular that an opportunity to make worthwhile or effective representation is an important requirement of fairness in most situations, paragraph 11.2 provides that the standards of fairness are not immutable and paragraph 11.3 provides that there is no absolute right to an oral hearing and that it does not follow that there must be an oral hearing before a decision is made. The Board would consider all relevant matters before deciding whether to hold an oral hearing. The presence of material factual disputes which cannot be decided on paper is often a good and sufficient reason in itself for holding an oral hearing.

18.  The Applicant had an oral hearing before. The Board assessed his claim on the basis of the case as he asserted. There were no material disputes of fact. The Applicant submitted no additional evidence or information in respect of his claim under BOR 2 Risk ground. For reasons as given in paragraph 14 above, the Board considered the Applicant’s claim under BOR 2 Risk ground may be justly determined without holding an oral hearing. The Applicant has not mentioned what submissions he could have made had an oral hearing been held. This Court agrees with the Board’s discretion not to hold an oral hearing.

19.  Second, the Applicant complained about the Board’s “failure to properly apply paragraph 2 of the UN Committee Against Torture General Comment No. 2 whereby satisfaction of a national states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event”. The Board’s 2^nd Decision does not turn on reforms and means of relief etc.

20.  Third, he complained that the Board “failed to conduct sufficient inquiry into the country of origin information and failed to consider he would face serious risk from his enemies because of his political and statistical view….” His claim under BOR 2 Risk ground is about risk of being arbitrarily deprived of his life by the government. The Applicant had offered no evidence of such risk. It never was his case that a sentence of death had been passed on him.

21.  Fourth, he complained that the Board failed “to take into account the considerations of psychological strain and threats to [him] personally or threats to [him] directly to kill [him].” No such evidence of psychological strain or threats had been adduced by him. His case was simply that after executing his revenge, he fled the country out of his self-engendered fear.

22.  Fifth, he complained that there was no sufficient basis to conclude that he and his family members would not be at risk of being subjected to torture and or cruel, inhuman, degrading treatment and punishment (“CIDTP”) upon refoulement. His claim under BOR 2 Risk ground is about risk of being arbitrarily deprived of his life by the government not about risk of torture or ill-treatment by the perpetrators. The Board’s findings on those other risks were made under the 1^st Decision, which are now final. Besides, this ground is a direct challenge of the Board’s finding of fact which is impermissible.

23.  At the hearing, after the applicable law relating to judicial review had been explained to him, he confirmed he had no complaints about procedural unfairness. The ground of application he now advanced is a rolled-up ground founded on errors of law and irrationality in that the Board had failed to take into account the current conditions in Bangladesh. He said the prime minister’s and many AL members’ houses were torn down by protesters and oppositionists, members of the AL are being persecuted, many AL members have fled the country and his life will be in danger, if returned to Bangladesh. He had previously submitted two written submissions with some newspaper cuttings expanding on his plights in returning to Bangladesh. The newspaper cuttings were allegedly from the South China Morning Post published in August and September 2024. They reported that Prime Minister Sheikh Hasina and founder of the AL resigned and fled the country on 5 August 2024 following days of bloody protest, her AL led government collapsed and was taken over by the military with a view to establishing an interim government.

24.  Even assuming what the Applicant asserted are all true, that was the situation in Bangladesh seven months ago and not today or at the time of making of the 1^st Decision or the 2^nd Decision. The situation of Bangladesh today or in August 2024 has no bearing on the Board’s finding of fact in the 1^st Decision or 2^nd Decision four years ago. The Board’s finding in the 1^st Decision is now final. The propriety and correctness of the 2^nd Decision could not be criticized as erroneous in law or as irrational because of subsequent changes in the political scene.

Overall scrutiny

25.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of his case as he asserted. It was on that basis that the Board found that the Applicant would not be subjected to ill-treatment at the hands of the former CD/BNP members or at all. Hence, the Board found he is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

26.  As the Applicant has not advanced any reasonable explanation for the very substantial delay and his leave application has no realistic prospect of success, extension of time for him to file his leave application is refused. Accordingly, his application for leave to apply for judicial review is also refused.

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