RAHMAN ZIAUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 558/2019

[2022] HKCFI 1386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 558 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.      Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

2.      Extension of time to apply for leave to apply for Judicial Review be refused; and

3.      Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 April 2018 (the “Notice”).  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

2.  In his supporting affirmation filed on the same day, the Applicant said he was late in making the application because he was in prison custody and he exhibited a copy of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 10 October 2018 (the “Decision”).  It is clear from the Decision that the Applicant had appealed to the Board against the decision of the Director in the Notice and the Board had dismissed his appeal. 

3.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[2].  Allowing him the benefit of his ignorance of the non-refoulement procedures and the confusion, it must have been his intention to seek judicial review of the Decision of the Board and not the decision of the Director in the Notice.  Leave is therefore given to amend his Form 86 substituting the Board for the Director and the Board’s Decision for the Director’s Notice.  Without this amendment, his application may be dismissed forthwith because the Director’s Notice is no susceptible to judicial review.

4.  The Applicant is a national of Bangladesh, now aged 46.   He surrendered to the authorities on 14 August 2015 claiming to have entered Hong Kong on 11 August 2015 illegally. On 25 October 2016, he raised a non-refoulement claim by written representation.

5.  On 5 December 2017, he was arrested and then prosecuted for the offence of establishing or joining in any business while being a person in respect of whom a removal order is in force.  He was sentenced to 22 months’ and two weeks’ imprisonment.  He was discharged from prison in about March 2019.

6.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By a Notice of Decision dated 20 April 2018, the Director rejected his claims under all four applicable grounds.  He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 10 October 2018, the Board dismissed the Applicant’s appeal.  All these non-refoulement proceedings took place while he was in prison custody.  The appeal before the Board was conducted through the Remote Official Visit System.

7.  On 29 February 2019, the Applicant applied for leave to apply for judicial review.   Pursuant to 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 the grounds for 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.  By 15 February 2019, his application is one month and six days out of time.  To obtain extension of time for making an application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[7].

8.  Merits is usually a very important factor.  It was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[8] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  Where the delay is not very substantial, merits is usually the determinant factor.  It would be convenient to examine merits first, which would also dispose of the substantive application, if extension of time is granted.

The Applicant’s case

9.  The following account of the Applicant’s case is mainly based on the information in his written representation, the non-refoulement claim form prepared by him with legal assistance (the “NCF”), the record of his screening interview in the presence of his lawyer and his notice of appeal to the Board.  In essence, his claim is based on his fear of being harmed or killed by Awami League (“AL”), the ruling political party in Bangladesh because of his refusal to quit the Bangladesh Nationalist Party (“BNP”) to join AL.

10.  The Applicant was raised in Rajbari, Bangladesh.  He received 10 years of formal education and he has never had a job.  He started supporting BNP in around 2001 and actively participated in its activities.  He was chosen by his village to become Council Member of the Youth Wing of the BNP, Jatiyatabadi Jubo Dal, in around 2002 to 2003.  He received some compensation for the work he performed for BNP. 

11.  Because of the Applicant’s success in the BNP, AL started to hold grudges against him.  After winning a local election in 2008, AL started to harass the Applicant.  About ten AL members under the leadership of Nuru Islam, the AL Union Chairman in the Rajbari area, asked him to join AL and threatened to kill him if he refused.  There were 10 to 12 incidents of harassment.

12.  One night in 2009, 10 to 12 AL people invited the Applicant to have tea together.  He obliged.  While he was having tea, he was blindfolded and kidnapped to a godown in Dhollapora. The Applicant was asked by the kidnappers to quit BNP.  The Applicant believed this was because the village people trusted him as a leader and would follow him.  The Applicant refused.  He was beaten by fist and wooden sticks for about four or five minutes.  Then the kidnappers asked for a ransom of 200,000 takas.  He was released at around 3 pm the next day when his father paid.  He went to a private doctor and obtained some medicine.

13.  The Applicant’s father and elder brother reported the kidnapping to the police station in Digir Char on the day he was released but the police did not take any action.  On the same day, the Applicant also went to the police and gave two lakhs taka to the police hoping that they would take some action to stop the threats from AL, but the police did not do anything. 

14.  Around five to six months later in around 2010, the AL people filed a false case against him for vandalizing public properties or vehicles (later known to be about an arson on a public bus).  He was served a summons from court.  He was granted bail.  The case was said to be still ongoing after he came to Hong Kong but he did not have any up-to-date information about the case.

15.  One night in late 2013, while the Applicant and his friend Ripon Mondol were returning to his village by launch, they were shot at by a gunman near the Padma River.  The gunman was accompanied by 14 to 19 people, some of whom were armed with choppers, knives and sticks.  The Applicant jumped into the river and escaped without injury but Ripon Mondol was shot dead.

16.  The Applicant made a report to the police but that the police did not help him.  He believed the gunman worked for AL.  Later in around 2013, the AL people threatened to kill the Applicant for being a BNP supporter and for supporting the Jamaat-e-Islam political party.

17.  One night in around mid-2012/2013, a group of 30 AL people armed with pistols, choppers and axe gathered in front of his house.  The Applicant managed to escape.  The group of people assaulted and kicked his pregnant wife causing a miscarriage.

18.  The Applicant’s parents made a report to the police.  The police told them that the Applicant should leave or the police would kill him. 

19.  The Applicant left for India in December 2014 but he returned in the same month.  He hid in different places in Bangladesh until April 2015 when he flew to Shenzhen, China.  Then he sneaked into Hong Kong in August 2015.  Soon after his arrival, he learnt that his cousin, a secretary of the BNP at the union level, was killed by the AL people.

The finding of the Board

20.  The Applicant testified before the Board.  Despite his oral evidence was broadly consistent with the main claims made in his NCF, the Board noted that in relation to details about his claims, the Applicant’s oral evidence departed significantly from that in the NCF.  The Board discussed its concerns with the Applicant but was not satisfied with his explanations based on memory failures or mis-interpretation or the misunderstanding between him and the interpreter and change of interpreters. The material significant discrepancies between his testimony before the Board and the NCF include:

(1)     The Applicant testified that he became the General Secretary of the BNP but in the NCF he only claimed to be secretary of the youth wing of BNP.  The Applicant blamed the discrepancy on the quality of the interpretation during the preparation of the NCF.

(2)     When asked by the Board about how the AL people harassed him, the Applicant did not mention the verbal threats received in around 2008, which was referred to in the NCF.  He explained that it was due to lapse of memory.

(3)     The Applicant testified that he stood for council election in 2007-2008 but that was not mentioned to in the NCF.  He explained that he meant he was preparing to stand as a council member at the union level and that council members were not selected or elected from the party as they were selected at the union level.

(4)     As regards the alleged kidnapping, the Applicant’s testimony before the Board was that while he was sitting at a tea stall the AL people put a cloth on him and kidnapped him.  His claim in the NCF was that he was invited by 10 to 12 AL people to have tea and he obliged.  Then, while having tea he was blindfolded and pushed onto a motorbike.

(5)     The Applicant testified that he was hospitalized for 2 to 3 days after the kidnapping but he made no mention of hospitalization in the NCF.  He explained the difference by stating that he never mentioned hospitalization during the Board’s hearing.  But after listening to the record of the hearing, the Board was satisfied that he did.

(6)     The Applicant testified that his father went to the police after he was kidnapped but when the police refused to help, his father agreed to pay the ransom.  This was different from the claim in the NCF where the Applicant claimed that his father paid the ransom and went to the police station after his release.  The Applicant explained that he was not highly educated and could not remember the order of events.

(7)     In relation to the attack which caused his wife’s miscarriage, the Applicant’s testimony before the Board was that it happened a few days after his release from the kidnap.  In the NCF, the kidnap happened in around 2009 and the attack occurred in mid-2012 or 2013.  When asked to clarify, the Applicant claimed that there were a few years between the two incidents.

(8)     The Board noted that the Applicant made no mention about a false case of arson being made against him, to which he responded by saying that he forgot because he went through torture and a lot had happened to him;

21.  As for the shooting resulting in the death of his friend Ripon Mondol, the Applicant asked the Board to seeking confirmation by searching on the Internet.  While the Board found some reference in the internet about Ripon Mondol, it could not find any article reporting the shooting incident or his death.

22.  The Board did not accept the Applicant’s explanations for the discrepancies.  It was not satisfied that the Applicant’s memory was impaired to a level that would explain the discrepancies or that his education level could adequately explain the discrepancies. The Board did not find the Applicant credible.  It was not satisfied that he had told the Board the truth about his political association and activities in Bangladesh, the reason he left Bangladesh, and the reason he did not wish to return.  It did not accept he was associated with or was or is a supporter of the Jamaat-e-Islam; that he was a popular local political person in his village and that he was threatened by the AL people.  It did not accept the AL people had come to the Applicant’s home looking for him and assaulted his wife causing her miscarriage.  It did not accept the Applicant was involved in politics prior to leaving Bangladesh and that he would be involved in politics or political activity on his return.  The Board therefore did not accept that anyone in Bangladesh including people associated with AL had or has any adverse interest in the Applicant.   It did not accept the Applicant fears returning to Bangladesh for the reasons he has claimed or for any other reason.  It concluded that there is not a real risk the Applicant would face any of the proscribed harm under the USM should he return to Bangladesh. Hence, it dismissed his appeal.

The legal principles applicable to judicial review

23.  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[9].

Grounds for judicial review

24.  The Applicant did not state his grounds for judicial review in his Form 86.  In his supporting affirmation, he annexed the Board’s Decision and requested the Court to “consider my situation and grant my torture claim”.  He is asking this Court to reconsider his case afresh.  In other words, he is seeking to appeal the Board’s finding of fact in the guise of a judicial review.

25.  He had been invited by the Court via its letter dated 13 December 2021 to advise the Court of his first language and telephone contact number and to file submissions.  He responded but did not make any submission.

26.  In the absence of grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk, if returned to Bangladesh. 

Merits of the substantive application

27.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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 found the Applicant not credible and that he has failed to prove the factual basis to support of his claim.  It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of non- refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  These are finding of facts which 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 Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Length of the delay and the explanation for the delay

28.  As explained in paragraph 7 above, the Applicant’s application is one month and six days out of time.  The delay is not very substantial in the context of the statutory period of three months to apply.  His explanation for the delay is that he was in prison and could not handle his case.  That could not even start to explain why for three months while in prison custody, he could not have done what he did, namely preparing the Form 86 and supporting affirmation.  He could have the assistance of the welfare officer.   His appeal before the Board was conducted via the Remote Official Visit system.  He must appreciate the seriousness and the respect the authority attach to his rights and claims.  He has no complaint that he did not receive the Decision late.  He has been sleeping on his rights.  Though the delay was not very substantial, he does not have a reasonable explanation for the delay.

Balance of prejudice to the applicant and the proposed respondent if extension of time is granted

29.  As the intended judicial review has no realistic prospect of success, the Applicant will suffer no prejudice, if no extension is granted.  The prejudice to the proposed respondent and to public administration, if a challenge is allowed to proceed, is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. 

No questions of general public importance

30.  The intended application is essentially an appeal against the finding of fact by the Board dressed up as an application for judicial review.  It does not raise any questions of general public importance which are likely to have to be resolved by the courts in any event.

Conclusion

31.  The application for leave to apply for judicial review is late for a substantial period.  The Applicant has no reasonable explanation for the delay; the intended application for judicial review has no realistic prospect of success; the Applicant will suffer no prejudice if extension is not granted but the proposed respondent will suffer serious prejudice if extension is allowed; and the application does not raise any questions of general public importance.  All these considerations point against granting extension of time.  Accordingly, the Applicant should not be granted an extension of time to enable him to file this application.  For the above reasons, leave is granted to amend his application as aforesaid and his application as amended is 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

[1] Section 37ZR of the Immigration Ordinance, Cap. 115

[2] [2018] HKCA 549

[3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[5] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[7] CACV 63/2015 (unreported) 3 November 2015

[8] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[9] [2018] HKCA 524 at [14(1)]