MD HUMAYAN KABIR v. Ms CARMEN NG, ESQ

HCAL 128/2015

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 128 OF 2015

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D E C I S I O N
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Introduction

1.  The Applicant made a claim to the Director of Immigration (“the Director”) under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”).  It was taken to be a non-refoulement claim under the united screening mechanism.  His application was rejected (“the Director’s Decision”).  He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  The Adjudicator of the Board dismissed his appeal upon his request to withdraw the appeal, the ground being that his contemplated risks were no longer in existence (“the Adjudicator’s Decision”).  He now seeks leave to apply, out of time, for judicial review against both Decisions.

Background

2.  The Applicant grew up with his parents and only brother.  The family lived at Gospa Village, Comilla District, Bangladesh.  The whole family had been supporters of a political party by the name of Awami League (“AL”) for years.  It was an opposition party against the ruling party, Bangladesh Nationalist Party (“BNP”). 

3.  Although the Applicant was not a member of AL, during election period, he put up posters for AL and assigned duties for others to solicit votes from the villager and spent a lot of time with leaders of AL. He attended the campaign rallies for AL, so BNP came to know he was involved with AL.  Allegedly BNP was angry with the Applicant and his family.

4.  Three incidents were said to have caused the Applicant to be concerned with his own safety.

5.  The first was the Applicant’s abduction in January 2005 by 4 to 5 unknown men for a day.  The Applicant’s father suspected that it was done by BNP members.  As told by his father, the Applicant did not report to the police as his father said it was an internal matter between 2 political groups and it would be settled between the 2 parties instead of by the authority.  The father refused to tell the Applicant how the matter got solved.

6.  The second incident was an attack on the Applicant and his father, again in 2005.  During the chairman election of AL, the Applicant and his father went from house to house to solicit votes.  They were attacked by 8 men with bamboo sticks, one of which was the General Secretary of BNP and 7 were members of BNP.  The Applicant suffered bodily injuries.  He and his father were warned by the attackers not to seek vote for AL.  Again, the Applicant did not report to the police.  An agreement was reached between senior members of BNP and those of AL (including the father). All the attackers apologized to the Applicant and his father afterwards.

7.  The third incident was a bus accident in September 2005.  The Applicant had a dispute with a co-worker in March 2005 (‘the dispute”).  In his anger, the Applicant pushed the co-worker’s bus, causing it to tumble down into a pond and passengers were killed. 

8.  In fear of revenge by agitated family members of the victims, the Applicant fled Bangladesh.  He entered China and then came to Hong Kong in September 2005, on the strength of his Bangladesh passport.  He was arrested by the police in 2006 for overstaying and was deported to Bangladesh.

9.  On his return, he lived in Dhaka but kept contact with father.  The situation in the village was said to be unfavourable to the Applicant.  His family concluded that his life was still in danger if he stayed in Bangladesh.  They got another passport for him to flee the country.

10.  On the second flee, the Applicant first went to China on 11 February 2007 and arrived in Hong Kong 2 days later.  About 4‑5 days after arrival in Hong Kong, he applied for refugee status to the UNHCR office but was rejected in 2008.  He applied to the Director under Article 3 of the Convention on 25 April 2008.

11.  After arrival in Hong Kong, the Applicant maintained contact with his family members who warned him that his “enemies” were still enquiring of his whereabouts in the village.  The Applicant’s parents and brother were burnt dead allegedly by people of BNP.

12.  In his last contact with his mentor on 28 February 2014, the Applicant was warned not to return to Bangladesh where his life would be in danger as his enemies were still looking for him. It was the Applicant’s belief that there would be likelihood that he would be subject to persecution by his political enemy from BNP.

13.  The Director’s Decision was made on 31 October 2014, rejecting the Applicant’s claim.  The Applicant filed an appeal to the Board.

14.  Pending hearing of the appeal, on December 2014, the Applicant was informed (by an unidentified source) that his problems were settled by the leaders of his village union.  He decided to go home and thus withdrew the appeal.  This led to the Adjudicator’s Decision on 3 March 2015.

15.  He subsequently received a phone call (from an unidentified source) that his problems were getting more life threatening to him daily.  Some of the villagers were trying to solve his problems but failed to do so. 

16.  The Applicant applied to the Director on 7 July 2015 to reopen his claim but was rejected.

17.  The Applicant asserts that there were multiple procedural improprieties, unfairness and irrationality in the Director’s Decision. He asks for an order of certiorari to bring up and quash the Director’s Decision and that his claim be remitted to the Board for an oral rehearing before a different Board member.  He also asks for extension of time within which to make this application.

Extension of time to apply for judicial review

18.  An application for leave to apply for judicial review has to be made within 3 months from the date of the decision under challenge unless the Court considers that there is good reason for extending the time for application: Order 53, rule 4(1) of the Rules of the High Court. 

19.  Where the court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant leave or relief sought on the application if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration: s.21K of the High Court Ordinance, Cap 4; AW v Director of Immigration & anor, CACV 63/2015, 3 November 2015, at §§23-36, per Kwan JA.

20.  The approach of the court has recently been summarized in Pagtama, Victorina Alegre & anor v Director of Immigration, HCAL 13/2014, HCAL 45/2014 & HCAL 56/2014,12 January 2016, Au J, at §236:

“(1) Although Order 53, rule 4(1) sets down a three month limit, the primary requirement is promptness. The applicant cannot wait until the three month period is drawing to a close before springing into action.

(2) Unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration is unduly disrupted and policies and decisions put into uncertainty many months after they have been made.

(3) While the court has power under Order 53, rule 4(1) to extend time, the power is only to be exercised if “good reason” is shown.

(4) The following factors are likely to be significant in assessing whether there is good reason for time extension:

(a) The length of delay. The longer the delay, the more cogent the reason required for extending time.

(b) Whether there is a credible and valid explanation for the delay.

(c) The merits of the substantive application. In this regard it is important to recall Litton NPJ’s statement in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B - C that where an applicant is many months late, leave may be refused “however strong the complaint might otherwise be”. See also Hartmann J (as he then was) in Law Chun Loy v Secretary for Justice HCAL 13/2005, 26 October 2006 at paragraph 13.

(d) Prejudice (to the applicant if extension refused; to the authority if extension allowed).

(e) Whether the application raises question of general public importance and whether those issues are likely to have to be resolved by the courts in any event.”

21.  In this case, Form 86 was filed on 14 July 2015.  In relation to the Director’s Decision, this application was about 9 months out of time.  In relation to the Adjudicator’s Decision, it was about 6 weeks out of time.  The Applicant has not explained the circumstances whereby he only came to have received the Director’s Decision on 8 July 2015.  Nor had he tried to explain why he did not apply for leave within time.  Accordingly, the court should not entertain his application, unless he is able to show merits on his intended judicial review, prejudice or that the application raises questions of public importance.

Legal principles on the grant of leave to apply for judicial review

22.  Judicial review is a remedy of last resort.  Save in the most exceptional case, the court’s jurisdiction to grant judicial review will not be exercised where some other remedies were available and have not been exhausted: R v Epping and Harlow General Commissioners, ex parte Goldstraw [1983] 3 All ER 257 at p 262 per Sir JohnDonaldson.  It is only in extraordinary or highly exceptional circumstances that the court allows departure from this rule: Stock Exchange of Hong Kong Ltd v New World Development Co Ltd & Others (2006) 9 HKCFAR 234, per Ribeiro PJ at §115.

23.  The court should be informed of the existence of any alternative remedy and why that alternative remedy is not being pursued: Berich Brokerage Ltd v Securities and Futures Commission [2005] 2 HKLRD 583, §32, per Hartmann J (as he then was).

24.  The test for granting leave is reasonable arguability and the burden is on the Applicant: Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, at §§14-17.

Application of the legal principles on grant of leave

25.  There were 2 tiers in the screening of the Applicant’s claim. The first tier was done by the Director.  Should the Director find the claim not established, then the claimant has a right to petition the Chief Executive under Article 48(13) of the Basic Law.  That was the second tier and it was done by the Board.

26.  The Applicant has gone through the first tier but withdrew in the second tier.  His submission confirmed that he was told by his mentor that after investigation there was nothing to fear, things were resolved and that he could return to Bangladesh.  Six years after he first applied to the Director, the Applicant took another few months to think about it before withdrawing the appeal.

27.  It was quite clear that the Applicant’s withdrawal was voluntary.  The Adjudicator’s Decision was made on the Applicant’s request.  No error of law or procedural irregularity was shown.  The Applicant cannot use the information he received afterwards as a basis for seeking leave to judicially review the Adjudicator’s Decision.

28.  Since the Applicant has not exhausted all avenues before seeking judicial review, this application must be dismissed.

Merits, prejudice or questions of public importance

29.  The High Court is not to determine the merits of the Applicant’s failed claim nor does it sit on appeal from the Adjudicator’sDecision, still less from the Director’s Decision.  Its role is to ensure that there has been no deficiency in the process that the Applicant has undergone which resulted in his claim being refused.  TK v Jenkins & anor [2013] 1 HKC 526, at §40, Stock JA; AM v Director of Immigration & anor, HCAL 102/2012, 20 November 2013, McWalters J (as he then was), §31. 

30.  In TK v Michael C Jenkins, Esq & anor [2011] HKCU 2037, §87, Lam J (as he then was) explained the principles applicable to the process of a CAT claim:

“In the context of a judicial review of a decision of an adjudicator, the crucial issues are: whether the adjudicator committed any error of law in his interpretation of the CAT, whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness, whether the substantive decision satisfied the enhanced Wednesbury test.”

31.  In the present case, full reasons have been given for the Director’s Decision, based on all applicable grounds, including torture risk, risk of torture or cruel, inhuman or degrading treatment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and risk of persecution under Article 33 of the 1951 Convention relating to the status of refugees. The grounds for seeking judicial review were multifarious. I have asked the Applicant what the Director could have further investigated but he simply could not elaborate his grounds.

32.  No merits can be shown on the intended judicial review.

33.  There is alleged prejudice to the Applicant if he is deported to Bangladesh, but as I say, never elaborated by the Applicant. On the other hand, there is equally a need for a disciplined approach to applications for judicial reviewout of time, otherwise public administration may be unduly disrupted and policies and decisions put into uncertainty many months after they have been made.  The present case is an example.

34.  There is no question of general public importance disclosed in this application.

Conclusion

35.  The Applicant is out of time in seeking leave to apply for judicial review of both the Director and the Adjudicator’s Decisions. He voluntarily gave up his right of appeal to the Board. He has not exhausted all available avenues before attempting to apply for leave for judicial review.  There is no good reason for extending time for him to apply for leave for judicial review. I therefore decline to extend time and dismiss the application for leave for judicial review.