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HCAL 1063/2019
[2022] HKCFI 3654
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1063 OF 2019
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Shab Uddin |
Applicant
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent
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Director of Immigration
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Putative Interested Party
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. On 18 April 2019, by way of the Form 86, the applicant sought leave to apply for judicial review of the decision dated 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s BOR 2 Decision”).
2. In the Board’s BOR 2 Decision, the Board refused to exercise its discretion to allow the applicant’s late filing of notice of appeal/petition against the Notice of Further Decision dated 2 August 2017 by the Director (the “Director’s Second Decision”) rejecting his non-refoulement claim on the ground of BOR 2 risk[1].
3. The applicant had previously filed an application to apply for leave to apply for judicial review of the Board’s decision dated 5 May 2017 (the “Board’s First Decision”), which dismissed his appeal against the Notice of Decision dated 24 March 2015 made by the Director refusing his claim on Torture risk[2], Persecution risk[3] and BOR 3 risk[4] (the “Director’s First Decision”).
4. On 30 January 2018, Deputy High Court Judge Woodcock (“DHCJ Woodcock”) heard the applicant’s leave application against the Board’s First Decision.
5. On 4 May 2018, DHCJ Woodcock refused to extend time for the applicant to apply for judicial review against the Board’s First Decision and also refused to grant leave to the applicant to apply for judicial review of the Board’s First Decision (“DHCJ Woodcock’s Decision”) [2018] HKCFI 875.
6. The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. But he was absent without prior to notice to the Court. His application is therefore dealt with on paper.
Observations
7. The applicant’s personal background and claim, as well as the reasons set out in the Director’s First Decision and the Board’s First Decision, are comprehensively summarized at paragraphs 6 to 12 of DHCJ Woodcock’s Decision.
8. In short, the applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the members of Awami League (“AL”) due to his previous involvement with the Bangladesh Nationalist Party (“BNP”).
9. In the Board’s First Decision, the Deputy Judge had considered that the Board had assessed the applicant’s evidence in the hearing and found as facts that the applicant had exaggerated his facts; that even on his own facts, he had never been physically assaulted or ill-treated by the man he called his main enemy; that state protection was available to him and that internal relocation was a viable option if there was any risk if refouled.
10. Relevant to this application are the assessments of the applicant’s BOR 2 risk made by the Director and the Board.
11. In the Director’s Second Decision, the Director considered that, as the applicant failed to submit additional information to support his claim under BOR 2 risk, in light of the findings made in the Director’s First Decision, his claim that his right to life would be violated if refouled was also not substantiated.
12. The deadline for lodging the appeal against the Director’s Second Decision expired on 18 August 2017. However, the applicant only lodged his appeal on 4 April 2018. He was therefore late by 7 months and 17 days.
13. In the Board’s Second Decision, the Board considered whether to allow the applicant’s late filing of notice of appeal/petition. It rejected the applicant’s explanation that he only received the Director’s Second Decision on 28 March 2018 as there was no document to support such bare assertion [12].
14. For this reason, the Board concluded that there was no special circumstance that prevented the applicant from lodging the appeal on time and thus refused to allow the late filing of his appeal.
Application for leave to apply for judicial review of the Board’s Second Decision
15. In his affirmation in support of his application, the applicant set out his grounds, which I shall summarize below.
(1) He was not legally assisted.
(2) There was no oral hearing for him.
(3) The Board had relied on the source of news which is not officially recognized or it is simply hearsay. The cases it relied upon are outdated. It is the Board’s speculation that it would be safe for him to return his country.
(4) He considers that the Board had reached the wrong decision. The Adjudicator should have visited his country in order to familiarize himself with the situation there.
DISCUSSION
16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The real issue for this Court is whether the Board’s Second Decision of refusing to grant time for the applicant to file his notice of appeal against the Director’s Second Decision is correct.
17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
18. The Board had considered the applicant’s case in its First Decision, which covers Torture risk, BOR 3 risk and Persecution risk. The court had considered the applicant’s application for leave to apply for judicial review of the Board’s First Decision and rejected his application, having considered the merits of his case.
19. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:
“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”
20. Those grounds set out in paragraph 15 above are not relevant and they are not valid reasons to challenge the Board’s Decision.
21. Although the Board did not expressly say that it had considered the merits of the case before it determined not to extend time to the applicant to file his notice of appeal, this issue becomes irrelevant in view of the decision of the Court of Appeal’s case above.
22. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
23. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 7th day of December 2022
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 7/12/2022
Shab Uddin
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7/12/2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1343/15/4/35/B198; BOR 1127/18/4/1/B121
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1070/14 & RBCZ/9001617/17 (Formerly RBCZ/2790/09)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[3] risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR.
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