MD MOFAJJOL HOSSAIN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 223/2017

[2018] HKCFI 2692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 223 OF 2017

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D E C I S I O N

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Introduction

1.  This is the applicant’s application for leave to appeal (out of time) against the order dated 27 November 2017 which dismissed the application for leave to apply for judicial review (“the leave application”) (for want of prosecution (the applicant having failed to attend the hearing on 27 November 2017)) (“the dismissal order”).

2.  After the leave application has been dismissed, the applicant commenced another application (HCAL 1018/2017) on 6 December 2017 (about 10 days after the dismissal order).  That application was heard on 15 August 2018, and dismissed on 12 October 2018 (essentially on the ground the matter was res judicata (by the dismissal order)).

3.  The leave application arose out of the applicant’s wish to challenge the decision dated 19 December 2016 of the Torture Claims Appeal Board (and the Non-refoulement Claims Petition Office) (“the appeal board”) whereby the appeal board:

(a) upheld the decision dated 27 August 2014 of the Director of Immigration (“the Director”);

(b) dismissed the applicant’s non-refoulement claim.

The leave application was commenced in May 2017 (almost 5 months after the decision of the appeal board).

Background

4.  The applicant is a Bangladesh national who is about 37 years old.  He entered Hong Kong illegally in February 2007 and was arrested in April 2008.  After his arrest, he lodged a claim in effect that he would be harmed or killed if he was returned to Bangladesh.

5.  After having left secondary school, the applicant went to Dhaka City and lived and worked there as an auto mechanic worker.

6.  The applicant became a supporter of the Bangladesh Jatiya Party (Ershad) (“BJP”), and he later became a party member.  He would attend BJP meetings and rallies from time to time.

7.  The applicant has been attacked by members of the Bangladesh Nationalist Party (“BNP”) while attending BJP meetings or rallies:

(1) BNP members attacked a BJP rally in mid-2006. The applicant was hit by wooden sticks and suffered two cut wounds;

(2) about one month later, the applicant attended a BJP meeting.  BNP members suddenly attacked the BJP people there.  The applicant was hit with a stick on his back;

(3) about another 15 to 20 days later, BNP members and policemen attacked BJP members who attended a meeting.  The applicant was hit with a stick on his back;

(4) about another month later, BNP members and the police told the BJP people they could not hold meeting.  BJP members, including the applicant, were beaten by sticks;

(5) around another 10 to 15 days later, while the applicant was working at a car shop, he was threatened and slapped by someone from BNP.  The applicant finally fled from the scene.

The applicant did not report the above incidents to the police, believing that it would be of no use since BNP was the ruling political party, and has the backing of the police.

8.  Subsequent to the above attacks, the applicant was told he was among the people falsely accused of having murdered the landlord of the workshop where the applicant used to work in.  He was told he might be killed by the police action squad (which has a reputation for extreme violence) and was advised to flee.  The applicant left Bangladesh and went to India illegally by bus.  He then went to Nepal.

9.  Upon the advice of his family, the applicant returned to Bangladesh where he used his Bangladeshi passport to travel to China.  The applicant later left China and came to Hong Kong.

10.  The applicant learnt that police detectives went to look for him about two months after he left Bangladesh.  They said the applicant was a suspect of a murder case.

11.  The applicant fears that he may be harmed or killed by the police action squad or the BNP people if he returns to Bangladesh.

Decision of the Director and the appeal board

12.  Both the Director and the appeal board assessed the risk of harm to the applicant in Bangladesh to be low:

(a) the intensity and frequency of past ill-treatment was low (there were only 5 incidents of beating up from mid-2006 to January 2007);

(b) state protection was available from the Bangladesh police (police participation in one of the attacks was assessed to be an isolated incident).  The applicant never reported the attacks to the police.  The applicant’s fear of being killed by the authorities (including the police action squad) was negated by his ability to travel out of Bangladesh using his passport.  The police detectives who visited his family (para 10 above) did not act improperly;

(c) the country of origin information reports showed that, although corruption was common in Bangladesh, reforms have been implemented and were still on-going;

(d) internal relocation in Bangladesh was available to the applicant.  This is particularly so taking into account the applicant’s age and work experience.

13.  Further, after a hearing, the appeal board viewed the applicant’s claim of being at risk of harm or death with suspect.

The applicant’s grounds for seeking leave

14.  The applicant’s Form 86 fails to specify:

(1) the grounds for seeking relief in the leave application (in contravention of RHC Ord 53 r 3(2)(a)(iii) (Cap 4A));

(2) an explanation for the substantial delay (of about 5 months) in commencing the leave application.

15.  In his affirmation dated 23 May 2017 (filed in support of the leave application), the applicant contended to the effect that:

(a) the Director and the appeal board failed to consider the torture risk, persecution risk and/or BOR 3 risk of the applicant;

(b) the Director and the appeal board failed to give proper weight to highly relevant information in the country of origin information reports; and wrongly placed weight on irrelevant matters, or incorrect, or inaccurate matters.  Consequently, its decision was unreasonable;

(c) the Director and the appeal board failed to carry out sufficient independent research and inquiries into the country of origin conditions;

(d) the Director and the appeal board failed to analyze or assess the concept of extended status acquiescence;

(e) the Director and the appeal board failed to consider the applicant’s psychological harm.

16.  To err in the applicant’s favour, in the discussion below, I will treat the matters summarized in para 15 above as the grounds of application required by Ord 53 r 3(2).

Merits of the applicant’s grounds

17.  The Director’s written decision was about 27 pages long whereas the appeal board’s written decision was about 11 pages.  The applicant’s non-refoulement claim was discussed under separate headings: torture risk (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and s 37U, Immigration Ordinance (Cap 115)); persecution risk (Art 33, 1951 Convention Relating to the Status of Refugees and its 1967 Protocol); BOR 3 risk (Art 3, s 8, Hong Kong Bill of' Rights Ordinance (Cap 383), or Art 7, International Covenant on Civil and Political Rights).

18.  The Director and the appeal board have analyzed the applicant’s factual case and, where necessary to do so, have given reasons for making their factual findings.  In doing so, they, as the fact-finding tribunal, necessarily would have to evaluate and determine what weight (if any) was to be assigned to the factual evidence presented to them.

19.  Such an exercise cannot properly be regarded as “selective”, “failing to give proper weight”, “failing to evaluate facts” or “failing to analyze or assess”.  The applicant’s related complaints are therefore unmeritorious (para 15(b) to (c) and (e) above).

20.  Accordingly, the applicant’s complaints concerning alleged errors of law (para 15(a) and (d) above) are similarly groundless.  Both the Director and the appeal board have identified and applied the relevant statutes, regulations or conventions (as the case may be).

21.  It is also noted that the applicant’s above complaints are unparticularized.  As has been pointed out by the Court of Appeal in TK v Michael C Jenkins, Esq [2013] 1 HKC 526 (para 19 to 27 thereof), an applicant cannot “simply sit back” and asserts that more should have been done.

22.  In relation to the complaint that the Director and the appeal board have “failed to consider the applicant’s psychological harm” (para 15(e) above), the applicant has no history of psychiatric condition. Further, the Director and the appeal board have considered the intensity and frequency of the ill-treatment, and concluded that this falls within the low level (para 12(a) above).  As such, there is no objective basis on which a psychological impact could rest.

Delay and absence from hearing

23.  The leave application was commenced much later than the time prescribed by Ord 53 r 4(1) (3 months) (para 3 above).  The reason given for the substantial delay was that the decision of the appeal board failed to reach him.  The supporting information is scanty and vague.  I decline to give it much weight.  The leave application should be dismissed for delay alone.

24.  The applicant’s explanation for failing to attend the November 2017 hearing is that he did not receive the notice of hearing.  The postal address (an address in Kam Tin (claimed to be the address of the applicant’s friend), and not Ping Che where the applicant resides) was provided by the applicant.  The notice of hearing was sent to the Kam Tin address (the notice sent through ordinary post was not returned, though the one sent by registered post was).

25.  That the applicant was able to receive the dismissal order (also mailed to the Kam Tin address) in time for him to commence HCAL 1018/2017 shortly afterwards (para 2 above), shows that the Kam Tin address was an effective means of communication.

26.  For the above reasons, the applicant’s explanation for his absence at the earlier court hearing is rejected as being not credible.  Thus, no valid reason has been provided for his absence.

Conclusion

27.  By reason of the above matters, this application for leave to appeal (out of time) against the dismissal order is refused.