SHAB UDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL597/2017

[2018] HKCFI 875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 597 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 arrived in Hong Kong from Macau at the China Ferry Terminal on 1 November 2009 but was refused permission to land.  However, he had a legal representative ready to meet him to raise a torture claim.  This claim later became a non-refoulement protection claim on other applicable grounds which was rejected by the Director of Immigration (“the Director”) on 24 March 2015.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which conducted an oral appeal hearing and rejected the applicant’s appeal on 5 May 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review of that decision on 7 September 2017.  The applicant has failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision, Order 53 Rule 4.  He is, in fact, just over one month late.  His notice of application does not acknowledge the fact it is delayed as it should.  His affirmation does not acknowledge the fact it is delayed and offer a reasonable explanation.

3.  The applicant requested a hearing date and appeared in court on 30 January 2018 in person.  When asked to give an explanation for the delay he said he did not receive the decision of the TCAB.  I told the applicant that the TCAB would have sent the decision to the last known address they had for him on their records.  His explanation was that they sent it to his old address but he had provided them with a new address yet they still sent it to his old address.  This was his explanation for the delay.  The explanation is a bare assertion without any particulars or supporting documents from the applicant.  If he had changed his address with the TCAB I can see no reason why they would have not updated their records.

4.  I have considered the legal principles for granting an extension of time for judicial review.  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.

5.  The delay is not insignificant, there is no proper explanation for the delay and there is no good reason for extending time.  This is because the merits of the substantive application, after perusal of the papers and hearing the applicant, are 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.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Observations

6.  The basis of the applicant’s fear is that if he were to return to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) because of his previous involvement with the Bangladesh Nationalist Party (“BNP”).  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only need summarise it here.

7.  In 2006 the applicant joined the student wing of the BNP.  The 2008 the AL became the ruling party in Bangladesh and there were frequent clashes between the two political parties.  One night in October 2009 both parties were holding a political meeting but the venues were close together.  Some AL members disrupted the BNP meeting and even exploded a few bombs near the speaker’s platform which caused great panic and confusion.  The BNP leader was seriously hurt.  The applicant ran away.  The applicant’s mother was very worried and advised him to leave for Dakar immediately that night.  After he left, some unknown men came to his home to look for him; threatening to kill him when they found him.

8.  Three to four days later the vice president of AL in his area called the applicant’s mobile and threatened to kill him if he did not surrender immediately.  The applicant was so scared he threw away his Sim card.  His uncle immediately arranged for him to leave the country because that man was very violent and dangerous.  The applicant left on 30 October 2009.

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

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”); and

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”).

10.  The adjudicator of the TCAB treated the appeal/petition as a rehearing.  An oral hearing was conducted and the applicant elected to answer questions.  The adjudicator correctly set out the law and key legal principles applicable to the three grounds.  He set out the applicant’s claim and evidence and his assessment of it.  He found the applicant had exaggerated his claim; setting that out in his decision.  But even on his own facts, he had never been physically assaulted or ill-treated by the man he called his main enemy.  During the meeting that was interrupted by many AL members, where he was not the target, he said he was punched once in the ribs.

11.  The adjudicator did consider the Country of Origin (“COI”) information and the applicant’s assertion of police corruption.  He set out and cited the information he referred to and found relevant.  He found evidence that corroborated the applicant’s assertions but also found objective COI that showed reforms have been in place and ongoing which led him to conclude that State protection was available if there was any risk to the applicant if refouled.  He also found that internal relocation was a viable option if there was any risk if refouled.

12.  The adjudicator applied the law to his findings and found the applicant had not suffered any injuries or ill-treatment, be it physical or mental that attained a minimum level of severity home and had not been subjected to torture or CIDTP nor was he at any substantial risk of being subjected to torture or CIDTP in the future.  He had not been assaulted by anyone acting in an official capacity or with the consent or acquiescence of a public official.  He concluded that the applicant had failed to establish he would face a real risk of persecution, a real risk of torture or CIDTP under BOR 3, a real risk of being deprived of his right to life under BOR 2 and a real risk of torture as defined in section 37U(1) of the Immigration Ordinance if he is refouled to Bangladesh.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

13.  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 material and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

14.  I have considered the papers and grounds of this application.  This application lists eight grounds of judicial review.  Many involve the adjudicator’s failure concerning COI material and information. Those include grounds 1, 2 and 5.  Ground 3 criticises the adjudicator’s failing to consider a consistent system of human rights violations and ground 4 criticises him for failing to consider whether State protection exists in Bangladesh.

15.  Firstly, particulars have not been given in relation to each of these grounds and complaints.  Secondly, the adjudicator has made reference to COI material in his decision.  He considered State protection but not whether or not there is a consistent system of human rights violations in Bangladesh.  However, this is not relevant when the applicant cannot establish there is a real and personal risk to him if refouled. Consideration of this concept does not arise unless there is a substantial risk or a real personal chance he will be tortured or ill-treated if refouled.  In this case, the adjudicator made that finding.

16.  Grounds 6, 7 and 8 also lack particulars, there was never any basis for the adjudicator to call for psychological and psychiatric evaluation.  There were no complaints by the applicant or particulars given to the adjudicator recorded in the decision that the assigned duty lawyer failed him previously.  None of the above grounds have any merit.

17.  There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle.  He says he was ill-prepared and confused during the hearing. There is no record in the decision of any complaint raised before the adjudicator by the applicant.  The applicant complains that despite answering all questions honestly he is aggravated his credibility was doubted.  I am satisfied the adjudicator gave full reasons for his finding and his findings are reasonable.

18.  The only submission the applicant had to make during the hearing was that once his problem was solved at home he would leave Hong Kong.  He also confirmed that he had received after this TCAB decision a Notice of Further Decision from the Director dismissing his BOR 2 risk claim and he has not appealed that decision.

19.  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.

20.  Even if I am wrong and an extension of time should be granted to file this application, 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.

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