MADBAR ABDUL SALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL454/2018

[2019] HKCFI 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 454 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of Bangladesh. He is now aged 34 (DOB: 10 April 1984).

2.  The Applicant claimed he would be harmed or killed by some people associated with the Awami League (“AL”) because he refused to persuade his relatives to withdraw murder accusations against those people.

3.  The Applicant said he was a member of the Bangladesh Nationalist Party (“BNP”). There were conflicts between BNP and AL. One day in 2002 or 2003, a fight between the two sides broke out. The Applicant went to the scene. He found two of his cousins were dead and one was severely injured. Some BNP people said the victims were shot by Nuhun, Shofi, Habi and Nurul. They were all AL members. The injured cousin later died too.

4.  A report was made to the police. The police at first failed to arrest anyone. After some pressure by the BNP leaders, the police arrested Nuhun, Shofi, Habi and Nurul several months later. However, the court granted bail to all the accused.

5.  One day, Nuhun and Shofi went to the Applicant’s house. They were carrying guns. They pointed their guns at the Applicant. They threatened to kill the Applicant unless he and his BNP brothers would drop the murder charges. The Applicant said he was not able to persuade others to do so. Nuhun and Shofi then left.

6.  The Applicant did not report the matter to the police because he thought the police would not listen to him.

7.  The Applicant later learnt Nuhun and Shofi had gone to find his cousin Amir. They took Amir away but later released him.

8.  The Applicant's uncle took his family to live elsewhere. To avoid his enemies, the Applicant also moved to Chittagong and then Dhaka before he left the country for Dubai in 2005. He heard the AL people were still coming to his house to look for him.

9.  The Applicant returned to Bangladesh from Dubai in early 2013. He settled back at his home village after some months.

10.  In mid-2013, Nuhun, Shofi and Habi came to ask the Applicant to pay them 20,000 Bangladesh Takas in two months’ time. They threatened they would kidnap the Applicant if he did not meet their demand. The Applicant understood the three actually wanted him to persuade his relatives to drop the said murder charges.

11.  The Applicant did not complain to the police as he thought his enemies were powerful. He was worried and left his village to live in other places. Finally, he left Bangladesh for China on 9 February 2014.

12.  While in China, the Applicant learned from his wife that the AL people continued to look for him. He also heard two cousins of his had been falsely accused of criminal damage and imprisoned in Bangladesh.

13.  On 1 June 2015, the Applicant sneaked into Hong Kong from China. He did not seek asylum immediately.  He surrendered to the Immigration Department only on 18 June 2015 and made a non-refoulement claim on 15 October 2015.

14.  The Applicant claimed the AL people would kill him. He did not think the Bangladesh police would protect him.

15.  In the ensuing screening process, the Director of Immigration (“the Director”) refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

16.  The Director's decision was dated 23 November 2016. It was sent to the Applicant c/o his legal representative, the Duty Lawyer Service. [The Applicant at that time was serving a 15 month’s prison term for unlawful employment.]

17.  The Applicant filed his appeal late to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). The Board only received the Notice of Appeal (“NOA”) on 18 January 2017. It was dated 11 January 2017. The Applicant stated in the notice that he received the Director's decision in late November 2016 while in prison. He did not know English so he had to wait for an inmate to assist him to understand the Director's decision and to prepare for the appeal to the Board.

18.  The Adjudicator did not accept the Applicant had any justification for his late filing of appeal. On 8 March 2018, he dismissed the Applicant's late appeal.

19.  On 20 March 2018, the Applicant applied for leave for judicial review.

Timeline

20.  Things happened in this order: –

2005	The Applicant left Bangladesh for Dubai.
Early 2013	The Applicant returned from Dubai to Bangladesh.
2014-2-9	The Applicant left Bangladesh for China.
2015-6-1	The Applicant entered Hong Kong illegally from China.
2015-6-18	The Applicant surrendered to the Immigration Department.
2015-10-15	The Applicant lodged a non-refoulement claim.
2016-11-23	The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision”]
2017-1-18	The Board received the Applicant’s notice of appeal dated 11 January 2017. [It was late by more than a month.]
2018-3-8	The Adjudicator refused the Applicant’s late filing of appeal. [“the Board's decision”]
2018-3-20	The Applicant applied for leave for judicial review.

Respondent/Interested party

21.  The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

22.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]

23.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party.  Thus, the Board is the putative respondent; the Director is the putative interested party.

The Director's decision

24.  The Director did not accept the Applicant faced any risk that warranted non-refoulement protection. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. On 23 November 2016, the Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.

The Board's decision

25.  The Director's decision was sent to the Applicant by mail c/o the Duty Lawyer Service (“DLS”) on 23 November 2016 [Wednesday].

26.  According to s.37ZV(3) of the Immigration Ordinance, Cap. 115, such notice or document is presumed in the absence of evidence to the contrary to have been served or given and received on the second working day after it is sent. Therefore, in the present case the 14-day period was to run after 25 November 2016 (Friday). It would end on 9 December 2016 (Friday). However, the NOA was only received by the Board on 18 January 2017. It was dated 11 January 2017.

27.  The Applicant stated in the notice to the Board that he received the Director's decision in late November 2016 while in prison. He did not know English so he had to wait for an inmate to assist him to understand the Director's decision and to prepare for the appeal.

28.  The Adjudicator considered the Applicant was still represented by DLS at the material time. The duty lawyer would have explained the Director's decision and the appeal procedures to the Applicant. The Applicant need not wait for an inmate as he alleged. The Adjudicator did not accept the Applicant had given a good reason for the delay. He considered the delay was more than a month. There was a need to enforce compliance of the rules set out in the Immigration Ordinance so that proceedings could be conducted efficiently. The Adjudicator found there were no special circumstances that would make it unjust to reject the Applicant’s late filing of appeal. He thus dismissed the Applicant's late appeal.

Grounds for judicial review

29.  In Form 86 and his affirmation, the Applicant complained the Adjudicator failed to hold any oral hearing. He said the Adjudicator should consider the merits of his appeal. He complained the Adjudicator failed his duty to act fairly. The Applicant also complained the Adjudicator failed to inform him that he could complain. He further accused the Adjudicator failed to consider the fact that he was not legally represented after the Director's decision and thus had insufficient knowledge of the legal requirement, leading to the lateness of his appeal.

Court hearing

30.  The hearing took place on 23 July 2018. The Applicant was in person. A Bengali interpreter provided service in court.

31.  The Applicant said he was illiterate. A lawyer helped him to prepare Form 86 and the affirmation for the application for leave for judicial review. The Applicant confirmed all the grounds of judicial review were in the documents.

32.  Being asked of the circumstance relating to his late filing of appeal to the Board, the Applicant said he received the Director's decision from some officers in the prison in November 2016. Someone interpreted the content to him. The Applicant claimed he managed to send out the NOA via the welfare officer within the stipulated 14-day period but he could not tell the exact date. An officer from the Immigration Department later went to the prison to ask him why he had not filed an appeal. He was then asked to fill and submit a new NOA within three days. He therefore filed a second NOA dated 11 January 2017.

Discussion

33.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]

Late filing of appeal to the Board

35.  s. 37ZS (1) of the Immigration Ordinance states: –

A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).

36.  s. 37ZT of the same ordinance provides: –

(1)  If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which –

(a)  must include a statement of the reasons for failing to file the notice within that period; and

(b)  must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2)  The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a)  the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b)  any other relevant matters of fact within the knowledge of the Board.

(3)  If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4)  If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.

37.  In court, the Applicant said he managed to send out the first notice of appeal via the welfare officer in the prison within the stipulated 14-day period. However, an officer of the Immigration Department later went to the prison to ask him why he had not filed an appeal. He was then asked to fill and submit a new notice of appeal within three days. He therefore filed the current NOA, which was dated 11 January 2017.

38.  What the Applicant said in court was not in his affirmation or Form 86 at all. It sounds extremely odd that an officer of the Immigration Department would go to the prison to ask the Applicant why he had not filed an appeal and then asked him to submit a new NOA within three days.  That is incredible and also inconsistent with what the Applicant stated in the NOA received by the Board. There, the Applicant said he received the Director's decision but he did not know English so he had to wait for an inmate to assist him to understand the Director's decision and to prepare for the appeal.

39.  I do not accept the Applicant's changed explanation for his late filing of appeal to the Board. His only explanation was what he told the Board in the only NOA he had filed, which was dated 11 January 2017. The Adjudicator had duly considered his explanation and did not find it justified.

40.  The Applicant complained the Adjudicator failed to consider the fact that he was not legally represented after the Director's decision and thus had insufficient knowledge of the legal requirement, leading to the lateness of his appeal filing.

41.  The Adjudicator was certainly aware the Applicant was only represented up to the Director's decision. He assumed the duty lawyer had explained the Director's decision and the appeal procedure to the Applicant. That assumption was reasonable. There was no evidence to suggest otherwise. The Applicant had delayed his appeal application. He failed to show he really need to wait for an inmate for assistance.

42.  Even if the Applicant would like to enlist an inmate’s help after DLS had stopped acting for him, he should not have waited that long. The date of his NOA was 11 January 2017 while the deadline for filing was 9 December 2016. The NOA reached the Board only on 18 January 2017. The delay was in any event more than a month.

43.  In a case of late filing of appeal, the Board must decide as a preliminary decision without a hearing whether to allow the late filing or not. The Board may only take account of the statement of reasons stated in the NOA, any accompanying documentary evidence relied on in support of those reasons and any other relevant matters of fact within the knowledge of the Adjudicator. The Adjudicator need not hold any oral hearing for a preliminary decision on whether to allow the Applicant's late filing or not. He also need not and should not consider the merits of the Applicant's intended appeal. The Adjudicator should only focus on the reasons stated in the NOA, any accompanying documentary evidence relied on in support of those reasons and any other relevant matters of fact within his knowledge.

44.  The Adjudicator was aware he had to consider the legal requirements set down by case law.[8] He had to decide if the lateness was serious or significant; whether the Applicant could give a good reason for the breach; and to evaluate all the circumstances of the case.

45.  The Adjudicator had considered the reason given by the Applicant and all the circumstances. He found the Applicant was unreasonably late in his filing of appeal for more than a month. The Adjudicator considered there was a need to enforce compliance of the rules set out in the Immigration Ordinance so that proceedings could be conducted efficiently. He found there were no special substances that would make it unjust to reject the Applicant’s late filing of appeal. He thus dismissed the Applicant's late appeal. The Adjudicator’s decision was not Wednesbury unreasonable.

46.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his decision. He made no errors of law and there was no procedural unfairness. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

47.  The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought review. I therefore refuse to grant him leave for judicial review.

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