MOSHSIN ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL400/2017

[2018] HKCFI 289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 400 of 2017

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

Following;

Leave to apply for Judicial Review refused.

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

1.  The applicant is a Bangladeshi national who first arrived in Hong Kong in January 2006 and was arrested by the police for overstaying.  A removal order was made against him, he appealed against it but it was dismissed and he was removed back to Dhaka, Bangladesh on 18 May 2006.  He was next arrested on 17 December 2007 for having overstayed in Hong Kong since 17 July 2006, having entered on a different identity on 18 June 2006 which was one month after he was removed.  He then lodged a non-refoulement protection claim.

2.  His claim was rejected by the Director of Immigration (“the Director”) on 28 November 2014.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which heard his appeal on 5 November 2015 and rejected it on 15 March 2017.  The applicant filed a notice of application for leave to apply for judicial review on 14 July 2017.  The applicant has failed to file his Form 86 in a timely manner; within three months from the date of the decision.  It is just shy of one month late.  He has provided an explanation in his affirmation as required.  I must consider whether there is a good reason for granting an extension of time pursuant to Order 53 rule 4 (1).

Extension of time refused

3.  I have considered the legal principles for granting an extension of time for judicial review set out in AW v Director of Immigration & anor,CACV 63/2015, 3 November 2015, §27.  The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

4.  The applicant repeated his reason for the delay during the hearing.  The reason given by him is not that he was unaware of the time limit to file this application but that he had lodged an appeal/petition against the Notice of Further Decision from the Director who had rejected the applicant’s BOR 2 risk claim.  That petition was still pending determination so he was late in filing this application for judicial review.

5.  The applicant could give no details as to when he had lodged that appeal/petition with the TCAB except to say it was more than one month before the date of this application, this Form 86 dated 14 July. The applicant gave no details as to why that would cause him delay in filing this application on time.  Ultimately, he presented no credible explanation or excuse for the delay.

6.  The delay is not insignificant and there is no good reason for extending time.   Delay alone is enough to dispose of this application but the merits of the substantive application after perusal of the papers are in themselves weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused.  However, if I am wrong, I proceed to consider the merits on the papers.

Background

7.  The basis of the applicant’s claim is that if he were to return to Bangladesh he would be harmed or even killed by the money extortionists from both the Bangladesh Nationalist Party (“BNP”) and the Awami League (“AL”) party.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore, I only intend to summarise it here.

8.  The applicant was born in Bangladesh, received eight years of education, worked as a farmer for five years until 1995 before going to KL, Malaysia to work as a construction site worker for three years.  When he returned in 1998 he started his own fabric and cloth wholesale business by opening a shop in a market in Jessore.  He is married with two children.  He operated this shop from 1998 to 2005.  It was common that the members of the ruling political party would extort money from business people and shop owners by way of extortion and call it protection money.  A refusal to pay would result in acts of vandalism.

9.  From about 1999 to 2000 the applicant paid the AL about 2.5 lakhs taka in protection money over about 10 visits from a group of 7 to 10 AL extortionists.  They came to his shop and asked for money to cover their personal expenses.  On one occasion the applicant refused and they broke the glass of his showcase.

10.  In 2001, the BNP replaced the AL as the ruling party in Bangladesh and they began to extort money from the applicant instead.  This began at the end of 2002 and went on until the applicant felt he was forced to leave Bangladesh.  He tried to approach Iqbal Hossain a lawyer, a BNP member and the chairman of the Municipal Corporation of the BNP; the highest BNP official in his area to beg him to stop his party members from extorting so much money from him.  He had known Hossain since they were children.  When he refused to help, the applicant knew the BNP extortionists were acting on his instructions.

11.  The applicant paid 20,000 taka the first time but they came at least 15 to 20 times asking for the same amount until the end of November 2004; the applicant paid the same each time.  The applicant could no longer afford to pay at the end.  He was told if he refused they would burn his shop down and kill him.  He tried to see his friend Hossain again but was told that people were sent by the son of the then Prime Minister from Dhaka to collect money and the amount would now be 200,000 takas each month from December.  The applicant refused to pay it but was told his life was in danger if he refused.

12.  The applicant approached another Minister of the BNP government for assistance, the most senior minister in the area, and told him about the extortion and threats from Hossain.  However, Hossain found out about this complaint.  One night in early December 2004, many men came to the applicant’s home and confronted his father.  The applicant hid under his patio but he heard the entire conversation.  He heard that Hossain had sent the men and he would be beaten if he did not pay protection money.  His home was damaged but he fled to his friend’s home uninjured.  The next day the applicant said he entered India illegally and stayed there with a friend until early January 2006 when he returned to Dhaka and his brother arranged for an agent to fly him to Hong Kong on 21 January 2006.

13.  The applicant is of the view that the State authorities in Bangladesh are corrupt and that they will offer no protection to him if he is returned to Bangladesh. That is the reason he did not report the threats and extortion to the police. Internal relocation is impossible.

14.  The adjudicator, as did the Director, assessed the applicant’s claim under the following applicable grounds;

(a)   Articles 1 and 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and part VIIC of the Immigration Ordinance Cap 115 (torture claim);

(b)   Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 (HKBORO) and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”); and

(c)   Article 33 of the 1951 Convention relating to the status of refugees and its 1967 Protocol (persecution claim).

15.  The adjudicator treated the appeal as a rehearing and not an appeal.  He set out the law and key legal principles for all applicable grounds listed above.  He conducted an oral hearing and the applicant elected to answer questions.  The adjudicator considered the applicant’s oral evidence and the evidence previously given at interviews and in his non-refoulement claim form.  He concluded that the applicant was not reliable, his evidence was contradictory, illogical and he was not a genuine claimant.  

16.  He found he had fabricated his evidence for the purposes of supporting a claim. In his decision, the adjudicator set out the reasons for his conclusion and the examples of the applicant’s contradictory and illogical evidence which led to that conclusion.

17.  Notwithstanding his findings, the adjudicator did assess the claim against the three applicable grounds and considered the country of origin (“COI”) information.  The applicant submitted the police were always under the control of the ruling party at the material time and were corrupt; they would be reluctant to protect him if he complained about the ruling party.  The adjudicator found COI information that did corroborate his allegation.  He set it out in his decision.  However, he did find objective COI that reported there were reforms set in motion and ongoing which had some positive results in recent years.  There were indications the applicant had alternative avenues to seek justice if he did complain to the right authorities.  Those reports that supported that opinion were also set out in his decision.  There was COI information that indicated Hossain was ostracised by his own party for violating party discipline and illegal activities.  He concluded that reasonable State protection was available if the applicant returned to Bangladesh.

18.  When the adjudicator considered the risk of torture, he considered the fact the applicant had never been inflicted with any physical injury or severe pain.  At most he had been verbally threatened.  The demand for extortion was not for any purposes under the definition of torture as set out in section 37U(1) of Cap 115.

19.  The adjudicator did consider whether there was evidence of State acquiescence if the extortionists were public officials but as the applicant had never attempted to seek help or protection from the police or any higher authority then the adjudicator was right to find there was no evidence of that.  The allegation of the Prime Minister’s son sending people was an allegation without more to substantiate it.  The fact that he had never been arrested, detained or imprisoned and was able to leave Bangladesh without trouble indicated he was not a target of the government.

20.  The applicant had to show there were substantial grounds for believing he would be in danger of being subjected to torture if refouled and he had been unable to do that.  That section of the ordinance requires torture to mean an act by which severe pain or suffering, whether physical or mental is intentionally inflicted.  He had sustained no injuries, nothing in his evidence amounted to torture as defined; the threat of it is not enough.  The torture risk claim failed.

21.  The adjudicator considered what is necessary to invoke the protection from risk of torture under BOR 3 and applied it to the applicant’s evidence.  Ill-treatment must attain a minimum level of severity and on his own facts, the applicant had never been subjected to any level of physical pain or suffering.  Therefore, the BOR 3 risk claim failed.

22.  As far as the persecution risk was concerned his fear of ill-treatment did not fall within the definition of persecution in that, it was not on account of race, religion, nationality, membership of a particular social group or political opinion. The persecution risk claim failed.

23.  The adjudicator did consider internal relocation and the fact that the extortionists only extort money from shops who could pay. They also only operated locally.  The applicant had closed his shop over nine years ago.  The adjudicator found, if he had any risk, he would be safe living away from his home village if refouled.  According to the COI information, Bangladesh is an enormous country with a population of 166 million people which would make finding the applicant very difficult for the extortionists if they had such an intent.  The applicant was an able-bodied man with work experience in several fields, internal relocation was a viable option without undue hardship anywhere away from his home village.  The adjudicator confirmed the decision of the Director.

24.  To date, the applicant has not informed this Court of any result relating to his appeal of the BOR 2 risk claim or filed a notice of application for leave to apply for judicial review of any decision rejecting the appeal if that was the case.

Leave to apply for judicial review

25.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence carefully, logically and with caution.  The applicant’s complaints in the affirmation against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.  What was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

26.  He does in his affirmation seek to judicial review the decisions of both the Director and the adjudicator.  In my view, this is not the right course of action to take.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  There is no room for a judicial review of the Director’s decision.  I have considered the grounds of his application against the decision of the TCAB only.

27.  His first ground in paragraph 4 of his affirmation is essentially repeating his claim that both political parties will extort money when they are in power.  In paragraph 5 he criticises the adjudicator for failing to take into account that not only has money been extorted from him but he has been tortured, his shop vandalised, he has been subjected to abusive language and death threats to him and his family.  There was no evidence from the applicant that he was tortured or that his family was threatened.  The adjudicator did take on board the rest of his claim and made certain findings with reasons given.  There is no merit in this ground.

28.  The criticism in the remaining paragraph 6 against the adjudicator relate to the COI material and no particulars are given.  I find them to be unsubstantiated.  There is no merit in this ground.

29.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

30.  To conclude, I would refuse an extension of time and refuse leave for judicial review on that reason alone.  However, if I am wrong, I have considered the grounds of the affirmation and find there to be no realistic prospect of success.

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