MONIRUL ISLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 798/2017

[2018] HKCFI 1820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 798 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present/absent in open court;

Leave to apply to extend time be refused.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong legally on 19 September 2005, from China and overstayed from 4 October 2005.  He was arrested by the police on 16 December 2009.  The Applicant submitted a torture claim on 19 December 2009.  He was released upon recognisance on 22 January 2010.  That claim was refused on 23 May 2013 and therefore the Applicant raised a non-refoulement claim on the grounds of cruel, inhuman or degrading treatment or punishment on 28 May 2013, whilst appealing the original decision of the torture claim.  That appeal was refused and the Applicant was granted leave for judicial review of it.  The matter was remitted back and considered under the Unified Screening Mechanism (“USM”).

2.  The Applicant attended a screening interview on 11 April 2013 in respect of his torture claim and a further interview on 22 December 2015 under the USM.  The Director of Immigration (“the Director”) dismissed his claim (including that under BOR 2) by Notice of Decision (“the Decision”) on 13 January 2016, but invited him to make further submissions by letter of 6 March 2017, which the Applicant failed to do.  The Adjudicator of the TCAB, Mr Wesley Wong considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 11 July 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 October 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The Applicant is a Bangladeshi national.  He was born in Purba Dholaipur, Dhaka on 17 June 1971 and is married and now 47 years of age, having spent the last 13 years in Hong Kong under various heads of claim for refugee status.  He is not a supporter of any political party.  He asserts that in May 2005, he witnessed an incident in which a member of the Awami League (“AL”) shot dead a member of Bangladesh National Party (“BNP”).  As a result, he would have been expected to attend trial as an eye witness.  Both political parties threatened him, either to ensure he did attend the trial or to ensure he did not.  He did not seek the protection of the local police as he believed them to be corrupt.  He initially fled some 40 km away to the home of his father-in-law and remained there for three months and had no contact with any member of BNP or AL.  The Applicant was led to believe that they had however looked for him at his home in Dholaipur and therefore decided to flee to South Korea but whilst in transit in Hong Kong, his agent disappeared along with his passport.  He understands he is still looked for by both parties and that the murder trial is still outstanding.  The 10 to 12 defendants are on bail.  No pressure was placed upon his family save for enquiries as to the Applicant’s whereabouts.

Application out of time

5.  This application is out of time and the Applicant has not asked for an extension of time but I have nevertheless gone on to consider the relevant principles for such extension.  In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 23 October 2017.  Under Order 53 rule 4, an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose.  Where the relief sort is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision.  In this case time ran from 11 July 2017.  The Notice of Decision was sent to the Applicant’s registered address; the same address he relies upon for these proceedings.  The Applicant has submitted no explanation for his delay and has not sought leave for an extension of time.  I have never the less considered the principles applicable to granting such an extension if an application had been made and those are 1) the length of delay; 2) the reasons for delay; 3) the prospects of success in the intended appeal; and 4) the prejudice to the putative respondent if extension of time were granted: Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015).

6.  In this case the Applicant was late by 12 days and has not offered any explanation for this delay.  In view of that, he must satisfy the court that there are real prospects of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted.  For the reasons given below, there are no grounds before the court to found a basis for an extension of time for leave to apply for judicial review.  The Applicant’s claim for judicial review, as explained below, is not reasonably arguable and does not have a realistic prospect of success.

The non-refoulement claim

7.  Under the USM, the Applicant’s claim is to be assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.  Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).  Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.  Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

8.  It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Adjudicator

9.  The Adjudicator set a date for an oral hearing, which the Applicant failed to attend because he forgot.  He did not provide a reasonable excuse for his lack of attendance and therefore the Adjudicator dealt with the matter on the papers, which were, by this date quite extensive given the number of previous proceedings and hearings, all of which were available.  He noted that the Applicant had come to no actual physical harm and that he had received only verbal threats.  There was limited other evidence which was hearsay and, most notably, it had taken the Applicant four years to make his initial claim.  Nevertheless, the Adjudicator went on to analyse the Applicant’s claim on all applicable grounds and considered all available evidence.  He correctly set out the law and key legal principles including the burden and standard of proof.

Leave to apply for judicial review

10.  Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11.  There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review to show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.  This application is dismissed as being out of time.  There is no requirement to consider further the application for leave, however that has been done in an attempt to ensure consolidation of these matters should it be considered that leave to extend time should have been ordered.

13.  Despite the fact that the Applicant is out of time, in any event, he did not submit any grounds of review save to indicate he wished a re-hearing on the facts.  I have nevertheless considered the papers carefully.  I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  The facts were discreet and very old and there were no supervening events between 2005 and now.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

14.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I would therefore refuse leave for judicial review if I had not already dismissed this application for being out of time.

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