DAPTARI MOHAMMAD NAWEM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2363/2018

[2022] HKCFI 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2363 of 2018

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 Applicant being absent in open court;

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.     This is the applicant’s application for leave to apply for judicial review of the Decisions dated 9 November 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application is late for about 8 and a half months.  I shall deal with this issue below. 

2.     The applicant is now being detained by the Immigration Department.  The applicant did not request a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with on paper.

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 illegally on 2 October 2012 and was arrested by the police on 3 October 2012.  He lodged a non-refoulement claim on 20 March 2014 after his previous torture claim was rejected.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of Awami League (“AL”) and the government’s special force Rapid Action Batallion (“RAB”) because of his affiliation with Jamaat-e-Islami (“JEI”).  He also feared that JEI members would harm or kill him because he took some money away from them. 

5.     According to the applicant, he joined JEI in 2011 and actively involved in its events.  On 4 April 2011, the applicant participated in a protest against the AL.  In dispersing the protestors, the AL member hit the applicant with a hard object, causing his head bleeding.  After the protest, on several occasions from April 2012 to 23 July 2012, there was incidents involving the police, RAB and the AL members attacking the applicant’s school; the clashes between JEI and AL, as well as various political rallies which the applicant sustained injuries.  After the rally on 23 July 2012, the applicant left for other cities.  However, the AL members never ceased to hunt him down.  Eventually he fled to Hong Kong for protection. While he was in Hong Kong, he heard that some students were arrested for suspected affiliations with the JEI and that his father was severely hurt by the AL members.  He further mentioned that he was kidnapped by several unknown men and was asked to return the money he had taken from his party people.  Details of his claim are set out in paragraph 14 of the Director’s Decision and paragraphs 5 to 13 of the Board’s Decision as described below.

The Director’s Decision

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

a.     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”);

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 Notice of Decision dated 23 February 2017, the Director refused his claim for the reason that his claim was not substantiated.  The Director refused to accept his version of events as credible [19]-[23] and found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [24]-[28]; that state protection would be available to him [29] and that internal relocation was an option open to him [30]-[33].

The Board’s Decision

8.     The applicant appealed the Director’s Decision to the Board.  He attended the scheduled hearing on 13 September 2017, during which he answered some of the Board’s preliminary inquiries with the assistance of an interpreter.  Thereafter, the applicant stated that he was feeling unwell and decided not to answer further questions.  After cautioning the applicant that if he refused to answer questions from the adjudicator, the adjudicator would then assess his case on the documents only.  He confirmed that he understood and maintained that he would not continue with the hearing, the Board proceeded to determine his case on paper [30];[33]. 

9.     Insofar as his claimed fear from JEI was concerned, the Board rejected his explanation as to why he did not raise this material issue in his written documents.  In light of the inconsistencies and vagueness of such claim, the Board concluded that he had fabricated the risk of harm from JEI and the claim that he was kidnapped in Hong Kong [36]-[37].  The Board further considered that, even taking the applicant’s claim to the highest, the applicant failed to establish that he was personally targeted by the AL or the government and that he had failed to provide documents in support of his claim that the AL targeted ordinary JEI members [38]-[39].  In passing, the Board also concluded that there was no state involvement or acquiescence [58].  For these reasons, the Board found that his claim on the applicable grounds was not substantiated and dismissed his appeal.   

Application for leave to apply for judicial review

10.     The applicant filed Form 86 on 26 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.     In his affirmation in support of his application, he said that there was no lawyer to advise him; that the Board based upon assumption without considering the evidence; that the Board made inference without evidence. 

DISCUSSION

12.     As mentioned in paragraph 1, the applicant’s application is late.  The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted.  Also, the Court should not grant extension for a hopeless application.  See AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19.  I shall, therefore first consider the merit of the applicant’s case.

13.     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 applicants’ 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, CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

15.     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.”

16.     The applicant had been duly advised the consequences of not answering the Board’s questions.  Yet the applicant elected not to give evidence.  The Board is entitled to assess his evidence on that basis and make findings against him.

17.     The applicant has submitted no valid ground to assist his application.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].  It is simply not true to say that the Board made assumptions or inference without evidence in support.  The Board had set out the reasons for its findings.

18.     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.

19.     There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

20.     I therefore refuse to extend time to the applicant to apply for leave to apply for his intended judicial review.  Accordingly, I dismiss his 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