MOHABUB ZAMAN MITHU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2491/2020

[2022] HKCFI 2930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2491 of 2020

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court.

1.  Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused;

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

3.  The Applicant is at liberty to recover his medical reports from the Court upon application.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 23 December 2020 is late.^[1] I shall deal with this issue below.

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing is fixed on 5 September 2022 and he attended the hearing.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Bangladesh.  He entered Hong Kong on 23 December 2004 and was permitted to remain as a visitor until 27 December 2004.  On 16 March 2007, he was arrested by the police for theft.  He claimed that he had not departed since his arrival in Hong Kong on 23 December 2004.  On 13 July 2007, he lodged a torture claim.  His torture claim was rejected on 21 November 2013.  Yet, he had applied for a non-refoulement claim on all applicable grounds other than that of torture risk[2] on 13 November 2013.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Muslims, including his father and uncles, as well as the villagers in Narayangonj.  He also claimed that his conversion to Christianity was not acceptable by the Muslims.

5.  According to the applicant, under the influence of his friends, he converted his religion to Christianity in October 2004 and ceased to participate in the Islamic activities.  A few days later, upon knowing the applicant’s conversion, his father was furious and threatened to kill him.  The applicant first escaped to Dhaka.  He was informed by his mother that his uncles were insulted by his decision and also threatened to harm him.  Out of fear, the applicant fled to Hong Kong for protection.  While in Hong Kong, the applicant claimed to suffer a traffic incident which caused him mental stress that he was unable to cope with the process of being sent back to Bangladesh. He even attempted to commit suicide.  He further stated that he was unaccepted by other Bangladeshi because of his religion.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 15 September 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  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

c.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant for his claimed fear of harm from the Muslims was groundless.  In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [19]; (ii) there was no evidence of state involvement [20]; (iii) there was no evidence that the applicant was personally targeted by the Muslims due to his Christianity [21]; (iv) state protection would be available to him [22]-[26]; and (v) internal relocation was a viable alternative [27]-[29].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 19 October 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [9].

9.  The Board probed into the material aspects of the applicant’s claim [42]-[51].  It also invited the applicant to comment on the country of origin information (“COI”) which stated that reasonable protection was available.  The applicant replied that he could not explain the real practical situation [49]. Having considered all the evidence, the Board found that the applicant was not a witness of truth [52].

10.  In particular, the Board observed that the applicant’s answers at the hearing were vague and lacked details [53].  It also had concerns that the applicant failed to answer the fundamental questions regarding his religion conversion [54].  He was also unable to formulate clearly his fear other than saying that he had lost everything in his life and wished to die [55].  The Board also cast doubt on his alleged conversion [56].  In assessing the evidence as a whole, the Board was not persuaded that the applicant had converted to Christianity. [59].  It also considered that, on the COI, there were few attacks on the Christians [58].  As a result, the Board found that the crux of his claim about his converted religion was unsubstantiated [60].

11.  In passing, the Board expressed concerns over the applicant’s mental health [61].  While the applicant failed to submit any evidence on his mental illness, the Board nevertheless found that the assistances to mental health patients in Bangladesh were in effect [62]-[66].

12.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 23 December 2020 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant had enclosed the Board’s Decision but he did not set out any specific ground.

DISCUSSION

15.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 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. The delay of more than one year and a half is, of course, serious. However, I shall first consider the merits of the applicant’s case.

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.  I have taken note of the Board’s concern of his mental health condition. At the hearing, the applicant produced medical reports on his mental health condition. I have accepted the medical reports for consideration. The updated psychiatric report records that his last medical examination was on 22 September 2020 which says that he was still taking medication regularly. He was still distressing but had not suicidal or violent.  In another psychiatric report dated 25 August 2020, it says that he was a drug abuser, taking ice and cocaine in 2017. Having considered these psychiatric reports, it seems clear that he does not have serious psychiatric problem for the time being. I consider that It is unnecessary for the medical reports to be re-considered by the Board.

20.  The Board had assessed his case and did not accept his evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

21.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application. The applicant is at liberty to recover his medical reports from the Court upon 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