ANUKUL KAR ALIAS BABUL DEB v. DIRECTOR OF IMMIGRATION

HCAL 1759/2021

[2022] HKCFI 1311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1759 of 2021

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 absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 4 February 2021 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 4 February 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all applicable grounds, while his appeal to the Torture Claims Appeal Board (“Board”) was subsequently withdrawn at his own request, and thereafter he was repatriated back to his home country, but later he sneaked back into Hong Kong, and after his arrest by the police, he then requested to make a subsequent claim.

Previous Non-refoulement Claim  

2.  The Applicant is a 46-year-old national of Bangladesh who had previously been refused by the Immigration Department to land in Hong Kong twice in 2006, and on 5 March 2007 he sneaked into Hong Kong, and upon his arrest by the police he raised a torture claim, and after it was rejected by the Director, he was repatriated to Bangladesh on 25 March 2011.

3.  Nine months later on 27 December 2011 the Applicant again sneaked into Hong Kong, and after he was arrested by the police, he raised another torture claim on the basis that if he returned to Bangladesh, he would be harmed or killed by some local supporters of the political party Awami League (“AL”) for refusing to pay them extortion money and/or by his creditor over his outstanding debts.

4.  By a Notice of Decision dated 9 September 2016 and a Notice of Further Decision dated 20 July 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and 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”).

5.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor or from those local AL extortionists upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that they were private monetary disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Chittagong where it would be difficult if not impossible for his creditor or those local AL extortionists to locate him.

6.  The Applicant on 19 September 2016 lodged an appeal to the Board against the Director’s decisions, but on 20 August 2018 he made a written request to the Board to withdraw his appeal upon confirming that it was safe for him to return to Bangladesh and that he fully understood the consequences of the withdrawal, and by a written notice dated 27 August 2018 the Board directed that his appeal be withdrawn and finally disposed of, and also confirmed the Director’s decisions.

7.  Accordingly the Applicant was repatriated to Bangladesh on 12 April 2019, but sometime thereafter he sneaked back into Hong Kong, and was arrested by police on 26 September 2020 for illegal entry and misleading a police officer, and while being detained in custody, he on 15 October 2020 in writing to the Immigration Department requested to make a subsequent claim on the basis that his creditor and those local AL extortionists are still looking for him in his home country that he fears of being harmed or killed by them if refouled to Bangladesh.  

Request To Make Subsequent Claim

8.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

9.  Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did on 26 January 2021 via his lawyer from Duty Lawyer Service (“DLS”).

10.  By a Notice of Decision dated 4 February 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

11.  On 29 December 2021 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, in which he stated that the Director reached the decision wrongly in assessing his request to make a subsequent claim, and that the decision was not fair or reasonable in failing to consider that his right to life must be protected by criminal law from extra-judicial killings which he may face if deported back to his home country.

12.  By then the Applicant was also seriously out of time with his application, as Order 53 Rule 4(1) of the Rules of High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 4 May 2021, the Applicant was therefore more than 7 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 7 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form 86 or supporting affirmation, nor did he attend the scheduled hearing of his application without any explanation, and as the record shows that the decision was sent on the same day to him via DLS without being returned through undelivered post, I do not see any good reason for his serious delay.

15.  As for the merits, if any, of his intended application, as noted above the Applicant did not provide any details or particulars or elaboration for his bare assertions that the decision was unfair or unreasonable, while even on his own case at the highest that there was never any suggestion or evidence from him to indicate that he may face any risk of extra-judicial killing upon his return to Bangladesh, while the Director was on the basis of the material and information submitted by his lawyer was perfectly entitled to find that the Applicant had failed to show any significant change of circumstances since his previous claim was finally determined, or that such change when taken together with his previous material would give his subsequent claim any realistic prospect of success.

Conclusion

16.  In the premises, and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim.

17.  Accordingly, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and dismiss his leave application.

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