ALAM JAHANGIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1754/2018

[2020] HKCFI 875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1754 of 2018

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

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 27 February 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant failed to attend the hearing on 19 December 2019 without prior notice or explanation. I shall proceed to consider his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by adding the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a Bangladeshi national. He came to Hong Kong on 14 May 2014 illegally and was arrested by police on the same day. He lodged a non-refoulement claim on 17 May 2014.

5.  He claimed that if refouled, he would be harmed or even killed by Mr. Kalam, a member of the Awami League (“AL”) and his companions.

6.  He was a member of Bangladesh Nationalist Party (“BNP”). Since 2009, AL was the ruling party. Kalam was a member of AL. He and 8 or 9 of his other members came to the applicant’s cosmetic shop and took away goods without paying for them. This happened 8 or 9 times near the end of 2009. He attempted to report the matters to police but was stopped by Kalam and his people whilst he was on his way to the police station.

7.  Kalam and his people caused disturbances to his family by throwing stones at his house causing noises and damage to his house. His father was abducted by some people, whom he believed to be Badal Khondokar of the AL and Kalam’s people. He was unable to find his father since then. Kalam and 6 or 7 companions once came to his shop and extorted from him BDT 100,000 as protection money. He did not have the money to pay. He offered to pay 20,000 BDT, but Kalam refused to accept whereupon they assaulted him. They left when other people intervened. The next day, he found that his shop was vandalized and damaged. The goods inside the shop were looted. His mother advised him to leave Bangladesh. He took her advice and paid the agent to make the arrangements first going to China, then to Hong Kong.

The Director’s Decisions

8.  The Director considered his application in relation to the following risks:

a.risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.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 (“Refugee Convention”) (“Persecution risk”).

9.  By Notice of Decision dated 18 August 2016 and Notice of Further Decision dated 11 August 2017 (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks as alleged if he returned to Bangladesh was low [57]; that state protection was available to him [79] and internal relocation was an option open to him [98]. His claim under BOR2 risk was not established.

The Board’s Decision

10.  The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 5 December 2017.

11.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

12.  The Board considered the applicant’s evidence and found that the applicant was not a credible, truthful and reliable witness and that he had fabricated and concocted his evidence to advance a claim for non-refoulement protection [56]. See §§44-57 of the Board’s Decision.

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 27 August 2018 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

15.  The applicant’s application is late: the Board’s Decision being 27 February 2018 and he filed his application on 27 August 2018. There is a delay of five months.

16.  In Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28, the Court of Appeal held that the applicant cannot proceed with the application for leave for judicial review without extension of time for them to file their application out of time.

17.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

18.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

19.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

20.  I therefore refuse to extend time for him to take out this application to apply for leave for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

21.  It is further directed that:

a.If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.When filing the application for leave to appeal, the applicantmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.Liberty to apply.

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