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HCAL 1605/2019
[2021] HKCFI 75
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1605 of 2019
BETWEEN
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Aslam Hossain |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
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 P Li:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant entered Hong Kong from China on 27 April 2007 illegally. He was arrested on 21 April 2008 for the offences of illegal remaining in Hong Kong and using another’s identity card. He raised a torture claim on 19 September 2008 while serving his sentence in prison.[1]
2. He claimed that he might be killed by his brother Rahman if he returned to Bangladesh. Rahman wanted to take the land which he would inherit according to the will of his father.
3. The non-refoulement claim was dismissed by the Director on 21 May 2015. His appeal to the TCAB was dismissed on 12 May 2017.
4. The applicant filed the leave application for judicial review on 13 June 2019. He was about 2 years out of time. In his Form 86 and affirmation, he did not seek extension of time for the leave application. There was no explanation about the late application.
5. This court fixed a hearing on 24 November 2020 on the applicant’s request. The notice of hearing was sent to his last known address by registered mail.
Background
6. The applicant was born on 10 September 1970. He was from village Ilshabari, District Nawga, Bangladesh. He had education up to class 12. He was married. He ran a rice business from 1990 to 2005. He was a Muslim. Rahman was his brother who was a member of the Bangladesh Nationalist Party (“BNP”).
7. One day in December 2004, his brother Rahman asked his father for money. His father refused. In the heat of an argument, Rahman slapped his father.
8. Subsequently, his father decided in a family meeting that the applicant would inherit all properties. Rahman would not get anything. This was put into a will in the beginning of 2005.
9. In mid-2005, he planned to set up a rice boiler on his father’s land. Rahman asked him to pay 500,000 taka[2] before he could continue the work. The sum was meant to be a surety that he would share the inherited land with Rahman. He refused.
10. At that time, Rahman was emotionally disturbed. Rahman locked up the applicant and his father in their rooms. The applicant’s father managed to leave home and stay with his sister in District Jaipurhat. The applicant left home and stayed in Rainogar, District Nawga. He stayed with his in-laws for a week and rented a house later.
11. One day in September 2005, he received an anonymous call demanding for 30,000 taka. Nothing happened afterwards.
12. Around February 2007, while he returned to his rented house in Rainogar by rickshaw, some people stopped the rickshaw and beat the puller. They accused the puller of not stopping immediately. He fled immediately. He learned from the local friends that Rahman sent these assailants who were members of Sharbahara Party (“SP”). This party was banned.
13. He did not feel safe in Bangladesh. He stayed with his aunt in Dhaka for a month while an agent arranged him to go to Hong Kong for protection. He was safe during that month. He departed Bangladesh on 4 April 2007 without any problem.
14. In 2013, his father told him that Rahman threatened to kill him if he returned to Bangladesh. In 2014, his wife told him that Rahman asked about his whereabouts.
15. He thought Rahman could locate him through BNP network everywhere in Bangladesh. Rahman might bribe the police too. He did not seek help from the Bangladesh authorities as most of them were corrupt and influenced by powerful people. He had not heard of the Anti-Corruption Commission.[3]
The Decision of the Director
16. The Director concluded that the level of risk of harm from Rahman was low for the following reasons [4]:
(a) The applicant’s father was still alive. The land belonged to his father. Rahman could not take the land even if he killed the applicant. There was no imminent danger to the applicant.
(b) Rahman had not inflicted any harm on the applicant. The SP people did not attack the applicant. There was no evidence that the BNP was involved. The only verbal threat was related to him by his father in 2013.
(c) There were COI reporting widespread corruption and police abuse of power. The government and even the judiciary were corrupt. On the other hand, there were COI which showed objective improvement in recent years. There was an Anti-Corruption Commission investigating corruption of politicians and public officials. There was a Police Reform Program underway to reform and modernize the police. In fact, the government was reported in taking action against police officers and RAB for abuse of power. The Bangladesh Legal Aid and Services Trust was a NGO providing legal aid services to the people and to resolve various kinds of dispute. In all, the government had laid down plan to improve effectiveness of the police.
(d) The Director found that there was reasonable opportunity for internal relocation. The law permitted internal movement. Bangladesh was a large country with a large population. Dhaka was a possible option. In fact, the applicant was safe when he stayed in Dhaka.
17. For the claim under BOR 3, the Director found no evidence of ill-treatment. The evidence did not support a genuine and substantial risk of ill-treatment if returned to Bangladesh.
18. For persecution risk, the fear of ill-treatment was not within any category of persons vulnerable to persecution risk according to the Refugee Convention. It was about inheritance of his father’s land. This claim failed.
19. For torture risk under s 37U (1) of the Immigration Ordinance, the applicant had not suffered severe pain and suffering as defined. There was no consent, instigation or acquiescence from a public official. Having considered the COI, the Director concluded that the government in Bangladesh will exercise due diligence to prevent, investigate and punish wrongdoers. The applicant was not personally at risk. He could depart Bangladesh freely.
20. The Director dismissed all claims on 21 May 2015.
The Decision of TCAB
21. The applicant attended the oral hearing fixed on 29 September 2016. The adjudicator dismissed his appeal on 12 May 2017. The adjudicator concluded that it was not credible that Rahman intended to harm the applicant. The future risk was very low on the following grounds:[5]
(a) The applicant confirmed during the hearing that Rahman was physically fit and there was nothing about Rahman’s health which might be relevant to the non-refoulement claim. Given this background, the reasons for the applicant to leave home was most unsatisfactory.
(b) The applicant said in the hearing that Rahman asked for 600,000 taka as surety instead of 500,000 taka stated in the NCF. The adjudicator was certain that this inconsistency was not due to confusion.
(c) There was no information as to how this surety would be returned to the applicant.
(d) The applicant disclosed in the hearing that he did not close his rice business after he decided to leave the home village. He continued his business as before. This was inconsistent with the claim in NCF that he feared Rahman would kill him and closed his business.
(e) During the hearing, the applicant gave evidence that the rickshaw attack occurred when he stayed with his in-laws. It was inconsistent with his NCF that the rickshaw attack occurred when he was on the way back to his rented house.
(f) During the hearing, he gave evidence that he learned from his friends that Rahman instigated the rickshaw attack. It was the attackers who told his friends. However, the applicant only mentioned this important aspect after a series of questions from the adjudicator during the hearing. This attack was the trigger point for the applicant to leave Bangladesh, there was no reason that he could have missed it in his earlier evidence to the Director.
(g) The incident arose from the disinheritance of Rahman. There was no violence from Rahman directly to the applicant. The threat that Rahman still wanted to kill him was from a distant paternal uncle. The applicant showed no interest in ascertaining from his father to restore Rahman’s inheritance so as to alleviate the enmity between him and Rahman.
(h) Given the personal circumstances of the applicant, Dhaka was a reasonable option for relocation. Rahman was only a member of BNP, there was nothing to suggest he could mobilize the resources of BNP to locate the applicant. Chances that Rahman could locate the applicant were slim.
Judicial Review
22. The applicant filed the leave application for judicial review on 13 June 2019. He was about 2 years out of time. In the Form 86, he did not apply for extension of time for the leave application.
23. In his affirmation, he reiterated that his enemy wanted to kill him. The screening system was no good. It should be changed.
Out of Time Leave Application
24. As mentioned above, the applicant was out of time for about 2 years. He should have first sought an extension of time for the leave application.
25. In considering whether there is good reason for the delay, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [6] The applicant did not apply for leave within 3 months as required under the law, he did not provide any explanation for the delay.
26. During the hearing before this court, the applicant indicated that he was ignorant about the 3-month-requirement for leave application. He only knew about the TCAB decision when the Immigration Officer informed him during the same week when he filed the leave application. Before that, he had not received the TCAB decision.
27. He reported to the Immigration Department every 2 weeks initially and later every 2 months. He was not informed of the TCAB decision during those reporting schedules. He had not changed his address since May 2017.
28. I noted in the notice of appeal to TCAB that the applicant gave an addressed [7] slightly different from the address in the Form 86 which was used by this court in the notice of hearing. [8] The former was “135B, XX village” but the latter was “G/F, Rm B, 135, XX village”.
29. In the notice of hearing sent by the TCAB in 2016, the address used was “135B, XX village” [9]. It was the same address given by the applicant in his notice of appeal.
30. Had there been any error due to the address causing problems in the mail, the applicant must bear the consequence. He had a duty to update the address with the Director and the TCAB under s 37ZA (2) of the Immigration Ordinance. Even if he had changed his address, he should have arranged a method for the mail to be diverted to him.
31. In addition, the applicant had attended the hearing in TCAB on 29 September 2016, there is no reason that he did not make any enquiry about the outcome of his appeal.
32. I do not accept the applicant’s explanation that he had not received the TCAB decision. I do not accept that he only knew about it when informed by the Immigration Department shortly before he filed the leave application in 2019.
33. I agree with the decision of the TCAB. There is no merit in the applicant’s claim given the evidence. In my judgment, there is no error of law and procedure. The decisions of the Director and the TCAB are reasonable.
Conclusion
34. In the circumstances, there is no good reason for extending the time for the leave application. I refuse leave to apply for judicial review.
Dated the 13th day of January 2021.
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(Mike Mak) |
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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 13 January 2021
Aslam Hossain
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 13 January 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1620/15/6/6/B223
Director of Immigration
Putative Interested Party’s ref. no.:
Q/A T/C 1877/08 (formerly RBCZ 1871/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 21 May 2015, §§8-9.
[2] Bangladeshi currency.
[3] Decision of the Director dated 21 May 2015, §§5-7.
[4] Decision of the Director dated 21 May 2015, §§13-21.
[5] Decision of the TCAB dated 12 May 2017, §§16-26.
[6] [2020] HKCFA 22, para 37.
[7] Hearing bundle, page 19. The notice of appeal to TCAB was dated 1 June 2015.
[8] The same address as in Form 86 which was dated 12 June 2019. The notice from this court was dated 23 October 2020.
[9] Hearing bundle, page 27. The date of hearing was 29 September 2016. The date of the notice was not clear as the page was folded up at the corner where the date should be. However, it should be a few weeks before the hearing date.
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