MIAH HEMAIL v. WONG CHI WAI, THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 481/2019

[2021] HKCFI 843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 481 OF 2019

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 oral submissions by the applicant in open court.

Extension of time to apply and leave for judicial review be granted.

Observations for the applicant:

Introduction

1.  This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decisions of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.  The applicant, born in 1990, is a national of Bangladesh.  On 28 June 2014, he was arrested by the police for illegal remaining and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim. 

3.  The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [5-6] of the decision of the Director dated 6 April 2016.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by people of a political party, namely Awami League (“AL”), due to his involvement in a rival political party.  He claimed that in 2013, he participated in 2 meetings organized by his party during which members of Chatra League (“CL”, the student wing of Awami League) came and disrupted the meetings with weapons.  Some members of his party were hurt but he escaped safely.  Later, the AL/CL people came to his home when he was not at home.  They threatened his family that they would kill him.  For his safety, he left his country for China and subsequently sneaked into Hong Kong on the day he was arrested.

The Director’s decisions

4.  By notices of decision dated 6 April 2016 and 21 April 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4]. Having taken into account all relevant circumstances, the Director considered that there were no substantial grounds for believing that the perceived risk of harm is likely to materialize and it was not accepted that the applicant would face a real and foreseeable risk of harm from his enemies upon his return to Bangladesh.  The Director also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.  The applicant failed to attend the hearing before the Board scheduled on 19 May 2017.  The Board tried to contact him by telephone without success.

6.  By a notice sent on 19 May 2017 under section 15 of Schedule 1A of the Immigration Ordinance, Cap 115, the applicant was informed that unless within seven days he provided a written explanation of his failure to attend the hearing, the Board would determine his appeal in his absence.  The applicant did not provide any explanation for his absence.  The Board therefore proceeded to determine the appeal in his absence.

7.  By a decision dated 29 June 2017, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s reasoning was encapsulated in [8-10] of its decision:

“8. It is incumbent upon the Appellant[5] to satisfy me that there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear at the hands of the ruling political party if he returns to the Home Country by reason of his participation in political activities against the ruling political party.

9. The Appellant’s account was stated in the Non-refoulement Claim Form dated 4 January 2016 that he had submitted to the Immigration Department. Further evidence of the Appellant was stated in the Record of Interview dated 2 March 2016.

10. However, I am unable to determine the credibility of the Appellant’s allegations in view of his failure to attend the Hearing. In the absence of oral evidence from the Appellant, I am unable to determine whether there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he returns to the Home Country. In the absence of oral evidence from the Appellant, the country of origin information in respect of the Home Country does not by itself demonstrate that the Appellant personally will face a risk of harm warranting non-refoulement protection.” (emphasis added)

Application for leave to apply for judicial review

8.  The applicant filed a Form 86 on 19 February 2019 for leave to apply for judicial review of the decision of the Board.  He asked for a hearing.  In the Form 86, he complained that he never received the notice of hearing from the Board; he was serving his sentence in prison 2017; and the Board has come to conclusion of his case without any assessment as the reason for rejecting his case was simply that it was “unable to determine” due to the absence of the applicant in the hearing.  As for his delay in his application for judicial review, he said he was only informed by the Immigration Department of the Board’s decision when he was detained in Castle Peak Bay Immigration Centre.

9.  An oral hearing was scheduled for the applicant on 26 January 2021.  As he stated in court that he could only understand Bengali (the Punjabi interpreter arranged did not speak his dialect), the hearing was adjourned to 17 March 2021. He attended the second hearing with the assistance of a Bengali interpreter.  At the second hearing, he said he actually received the Board’s notice of hearing. He did not attend the hearing as he was afraid that he would be sent back to his country. And he only learnt about the Board’s decision when he was caught and sent to Castle Peak Bay Immigration Centre in January 2019. However, it appeared he later changed to say that he received the decision of the Board. I find his explanations for his absence from the hearing before the Board and the late application for judicial review quite confusing.  However, it is unnecessary for me to give the details of the confusions for reasons I will explain later in this decision that leave for judicial review should be granted.

Discussion

10.  The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

11.  When the applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decision and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, it is unnecessary to delve into the decisions of the Director.  This decision will only focus on discussing the Board’s decision.

Application out of time

12.  It is noted that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the 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.  In considering whether to extend time, the court will 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: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

13.  In this case, even just counting from the 3-month time limit which ended on 29 September 2017, the application was late by about 1 year and 5 months.  The delay was substantial.  I find his explanation that he only learnt about the Board’s decision in about January 2019 not quite impressive.

Merits of the intended application

14.  However, the court is under a duty to examine the decision of the Board with rigorous examination and anxious scrutiny to find out if there are any error of law, irrational findings, or procedural unfairness.  The merit of the intended judicial review is an important factor in the present application.

15.  In the instant case, the Board dismissed the applicant’s appeal because it was unable to determine his credibility due to his failure to attend the hearing, and that in the absence of oral evidence from him, it was unable to determine whether there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he returns to his home country. It appeared to me that the Board dismissed the appeal simply because the applicant was absent from the hearing.

16.  In Re Hidayah [2018] HKCA 595, the Board also dismissed the applicant’s appeal on the basis that it was unable to determine her credibility due to her failure to attend the hearing. The Court of Appeal granted leave to the applicant to judicially review the Board’s decision on the ground that the Board had failed to give or had given insufficient reasons for its decision:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.” (emphasis added)

17.  In the present case when the Board was unable to determine the credibility of the applicant, it should have proceeded to analyze and assess his case under all applicable grounds on the basis that his case is plausible.  The Board also did not explain why his claim as set out in his NCF was not acceptable.  It is therefore reasonably arguable that the Board had failed to give reasons or give sufficient reasons in its decision for rejecting the applicant’s appeal.  It may be a good ground to give extension of time.

Disposition

18.  I would extend the time and grant leave to the applicant to apply for judicial review of the Board’s decision on this ground.

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