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HCAL 2030/2019
[2022] HKCFI 592
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2030 OF 2019
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Ripon Mohammed |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant first came to Hong Kong in November 1997 as a visitor. He was granted an investment visa to establish his business on 5/10/2000. There was a series of extensions of stay. He was last permitted to stay until 7/9/2006. He overstayed and was arrested by immigration officers on 20/4/2012 for breach of condition of stay. The Director received his torture claim on 29/5/2012. The Director rejected the torture claim on 30/11/2012. [1]
2. The applicant submitted the Supplementary Claim Form (“SCF”) under the USM on 1/6/2015. He was then represented by the DLS. There were difficulties arranging for a screening interview as the applicant was either sick or failed to give instruction to the DLS. He could not produce any medical certificate. Finally, on 6/4/2016, the Director proceeded to assess his claim as the DLS had no instruction to represent him. There was no screening interview after he submitted the SCF.[2]
Background
3. The applicant was born on 1/1/1970 in Dhaka City, Bangladesh. He had education up to secondary level. He had a business in exporting watches and electronics. He had registered his business in Hong Kong since 1994. He became a supporter of “BNP” [3] since 1990. He did not hold any office in BNP.
4. He assisted a friend Rahman (“R”) to do business in Hong Kong. R was a supporter of “AL” [4]. About March 2001, R was murdered in Macau. In April 2001, he liaised with the consulate and helped to transport R’s body back to Bangladesh according to Islamic procedures.
5. Later that year, R’s family filed a false charge against him and his immediate family including his mother. They alleged that he and his family were responsible for R’s death. His family had lost all the documents in relation to this false charge.
6. His family told him that senior leaders of AL and R’s family had instructed the police and some gangsters to take action against him. About the same time, R’s brother-in-law and other men came to his home demanding one million Taka for settlement, or else, one of his family members would be killed. There was finally a settlement witnessed by senior members of BNP, AL and other political parties.
7. Despite the payment of one million Taka to the family of R, they continued to harass his family. People from AL often came to his home asking about him. He did not seek protection from any authorities in Bangladesh. He thought it was useless as they were corrupt and influenced by political parties.
8. He had not applied for protection in other countries. He considered Hong Kong as his home country. He did not apply for protection in Hong Kong in 2001 because he had Hong Kong identity card at that time. After he was refused resident status, he then applied for torture claim protection.
9. His family was never arrested or detained. They had no problem with the police. The gangsters harassed his family occasionally. They mainly asked about him. The false charge was not processed in court. It was left with the police.
10. Around 2009, his business partner Ali introduced Mr. Rehmatullah (“RH”) to him in Hong Kong. RH was a member of the parliament and a rich industrialist in Bangladesh. RH planned to list his company in the Hong Kong Exchange. He warned Ali against helping RH. He feared that RH might kill him as he was an obstacle to RH’s listing plan.
11. It was impossible for him to relocate as R’s family and RH were powerful people. They would be able to locate him in Bangladesh.
The decision of the Director
12. The Director found that the risk of harm was low. The reasons were as follows:
a. The applicant and his family were never attacked by R’s family either in Bangladesh or in Hong Kong. The future risk of harm was low.
b. The applicant adduced no evidence about his conduct in blocking RH’s listing plan. There was no evidence that RH had threatened or ill-treated him. The future risk of harm was low.
c. He chose not to report to the police. It was not that the police refused or failed to take action.
d. The Director accepted that there were serious problems of corruption, inefficient investigation and political influence of the police. There were human rights abuses too. However, the government had taken steps to enhance police professionalism and tackle corruption. The Police Reform Programme continued to enhance crime prevention and accountability. The Anti-Corruption Commission was set up to fight corruption. There were news reports about punishing corrupt officers and political leaders. As a whole, there was evidence that the Bangladesh government was capable of protecting its citizens.
e. The law in Bangladesh allowed freedom of movement within the country. Bangladesh was a large country. The population was about 166 million. Given his age and experience, he should be able to relocate to other parts of Dhaka. It was not unduly harsh.
13. The Director rejected all claims on 19/7/2016 and 1/12/2016 [5]
The decisions of the TCAB
Decision of the TCAB dated 27/3/2019
14. The applicant wrote to the TCAB in a letter dated 12/2/2017. He requested for re-consideration of his claim. He asserted that he did not receive the decisions. He learned about them through the DLS on 8/2/2017. After a series of correspondences among the applicant, the Director and the TCAB, he filed a notice of appeal dated 11/3/2017 which was incomplete. Eventually, he filed a further notice of appeal (“NOA”) which reached the TCAB on 6/4/2017. In section 5 of the NOA, the applicant stated that medical conditions prevented him from filing the NOA in time.
15. The TCAB wrote to the applicant again on 18/12/2018 requesting for documentation which could support his application for late filing. There was no response.
16. In determining that the date of filing of the NOA was 15/3/2017, the adjudicator pointed out the following:
a. The decision of the Director dated 19/7/2016 was sent to the last known address of the applicant at that time.
b. The applicant was informed of the 14-day-time-limit for lodging an appeal.
c. The last day for filing the NOA should be 4/8/2016.[6]
d. On 15/3/2017, the TCAB received an incomplete notice of appeal dated 11/3/2017. It was more than 6 months out of time. Subsequently, there was a completed NOA filed on 6/4/2017.
17. In section 5 of the NOA, the applicant submitted that he had hypertension which affected his mind. He received medication while detained in LCRC [7] at some stage.[8] The adjudicator wrote to the applicant on 18/12/2018 asking for documentary evidence in support of his reasons. However, there was no response.
18. In the absence of documentary evidence, the adjudicator was not satisfied that the medical conditions affected the applicant’s ability to file his notice of appeal. The applicant failed to established how his medical conditions had prevented him from filing the NOA. The adjudicator noted that the applicant was last detained from 6/3/2017 to 29/3/2017. He was not satisfied that any period of detention had affected the applicant’s ability to file an appeal.
19. The adjudicator found that there was no special circumstance such that it would be unjust to disallow late filing. On 27/3/2019, the adjudicator refused late filing of the NOA in relation to the decision of the Director dated 19/7/2016 in relation to BOR 3 and persecution risk.[9]
Decision of the TCAB dated 17/5/2019
20. As for the decision of the Director dated 1/12/2016 in relation to BOR 2 risk, the adjudicator dealt with the late filing in another decision dated 17/5/2019.
21. The background of the late filing concerning the decision on BOR 2 risk was the same as summarized above in paragraphs 14—17.
22. The Director confirmed that this decision was sent to the DLS who did not represent the applicant then.[10] This supported the assertion of the applicant that he got the decision on 8/2/2017 from the DLS. The adjudicator accepted that the applicant was only notified about this decision on 8/2/2017.
23. Given the finding that the notice of appeal only reached the TCAB on 15/3/2017, the adjudicator concluded that the applicant was out of time. The adjudicator found that there were special circumstances to allow the late filing. He had considered the following:
a. The applicant had written to the TCAB on 12/2/2017 shortly after he allegedly learned of the decision from the DLS.
b. The background was only clarified by the Director in a letter dated 28/2/2017 to the applicant.
c. The applicant was in custody from 6/3/2017—29/3/2017.
d. The applicant filed a notice of appeal dated 11/3/2017 which reached the TCAB on 15/3/2017.
24. A hearing was held at the TCAB on 28/3/2019. It only concerned the assessment of the BOR 2 risk.
25. As summarized in the TCAB decision, the factual basis which he relied on was the same as that in support of his claim concerning the BOR 3 and persecution risk.[11] The adjudicator concluded that the applicant fabricated the animosity of R’s family against him. He pointed out the following aspects in rejecting the appeal on 17/5/2019:
a. On the one hand, R’s family appointed the applicant to handle R’s body in Hong Kong. On the other hand, they threatened to kill the applicant alleging that he was responsible for the death of R. The applicant was unable to explain this contradiction satisfactorily.
b. As to the motive of R’s family, the applicant told the adjudicator in the hearing that R’s family wanted to extort money from him as they knew he was a businessman. However, he told the Director in a screening interview[12] that R’s family blamed him for failure to take proper care of R. The adjudicator doubted his explanation that R’s family wanted to extort a higher sum.
c. The allegation of R’s family occurred in 2001. The applicant had delayed for many years before filing a torture claim in May 2012 after his arrest. He did raise a refugee claim with the UNHCR shortly after he was refused extension of stay in Hong Kong. It was about 5½ years after R’s family made the false charge. The adjudicator found that his primary purpose was to obtain permanent resident status in Hong Kong. It was not to flee from being killed in Bangladesh. His delay in filing the torture claim was damaging to his credibility.
d. The applicant did not mention the charge of murder in the Questionnaire of the torture claim. It was only disclosed in the oral hearing with the Director. The applicant could not explain satisfactorily.
e. The applicant claimed to have a translated copy of the charge sheet and brought it to Hong Kong. However, he had not mentioned this before. The applicant explained that the document was not important. The adjudicator did not accept this explanation. The adjudicator rejected that this inconsistency was due to mental stress.
f. The adjudicator noted that nothing had happened to other co-accused named in the charge sheet in the past 18 years. The adjudicator doubted the existence of this false charge.
g. The adjudicator did not think there was sufficient evidence that the applicant was under any real risk of harm from RH.
Judicial review
26. The applicant filed the leave application for judicial review on 17/7/2019. He only sought leave to judicial review the TCAB decision dated 17/5/2019. In his affirmation, he again asked for permanent resident status. His complaint against the TCAB decision dated 17/5/2019 was vague and not focused. So far as this court understands, he alleged that the adjudicator had concealed information, mislead or delayed the handling of the torture claim. He submitted a business registration certificate, a certificate of incorporation and a copy of his Bangladesh passport.
27. This court fixed a hearing on 17/1/2022. The applicant did not attend. The notice of hearing was sent to his last known address which he updated in a letter dated 17/11/2020. There was no return of mail. This court decided to deal with his leave application on paper.
28. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duties of the TCAB and the Director. In general, this court would not interfere.
TCAB decision dated 17/5/2019— appeal on BOR 2 risk
29. It is convenient to deal with this decision first. The adjudicator had carefully considered the circumstances under which the applicant received the Director’s decision. He was justified to find that there were special circumstances to allow late filing.[13] This court agrees with his decision.
30. As to the merits of the leave application, the adjudicator had analyzed the evidence in detail. He allowed ample opportunities for the applicant to explain the inconsistencies.
31. The adjudicator rejected the factual basis of the applicant’s claim. The reasons are set out in paragraph 25 above. This court agrees with them. Not only is the false charge implausible, the long delay in filing the claim is detrimental to the applicant’s credibility. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.
TCAB decision dated 27/3/2019—appeal on BOR 3 and persecution risk
32. The applicant did not seek leave to judicial review the refusal of late filing at all. For the sake of completeness, this court has the following observations.
33. In disallowing late filing of the NOA, the adjudicator had considered the background. The main distinguishing features were that the decision of the Director was sent to the last known address of the applicant. There was no return of mail. The applicant was not in custody until early March 2017. He failed to submit documentary evidence to support his medical grounds. In my view, the adjudicator was justified in disallowing late filing of the NOA.
34. I note that the adjudicator had not considered the merits of the appeal as required in Re Qasim Ali.[14] Leave should have been granted for the TCAB to consider the merits of the intended appeal. However, I would not grant leave for the following reasons:
a. The factual basis of the claim in relation to the BOR 2 risk was identical to that of BOR 3 and persecution risk. Given that the adjudicator disbelieved the applicant, had he considered the merits in relation to BOR 3 and persecution risk, it would be inevitable that he would arrive at the same conclusion as in the BOR 2 risk. In the circumstances, it would be futile to quash the TCAB decision and remit it for reconsideration because of the failure to follow Re Qasim Ali. I am sure that the outcome would be the same.[15]
b. Secondly, as of 1/8/2021, section 37ZT (2) was amended. The TCAB may only consider the reasons and the supporting evidence in the Notice of Appeal. There was no need to consider “any other relevant matters of fact within the knowledge of the Board” which is the position before the amendment. The basis of Re Qasim Ali was removed by this amendment.
c. If leave was granted, the TCAB which would deal with the late filing subsequently, would apply the amended version of s. 37ZT (2). The principle in Re Qasim Ali would no longer be applicable. There is no need to consider the merits of the intended appeal. This issue of merits would be academic. [16]
35. The applicant alleged that the adjudicator had concealed information, mislead or delayed the handling of the torture claim. There was no detail on these allegations. This court has considered the decisions of the TCAB. This court is satisfied that they are fair. This court rejects these allegations.
36. The applicant asked this court to consider his permanent resident status. This application had been dealt with in HCAL 69/2008. It is not up to this court to re-consider it again.
Conclusion
37. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. This court refuses leave for judicial review in relation to the TCAB decision dated 17/5/2019.
Dated 28th day of February 2022
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(Mike Mak)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 28 February 2022
Ripon Mohammed
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 February 2022
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7008/17/5/14/B822 & BOR 507/17/5/14/B822
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 589/15 & RBCZ/9000581/16
(Formerly RBCZ/2000830/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] In November 2006, he applied for a permanent identity card but was refused. His appeal was dismissed in May 2008. His leave application (HCAL 69/2008) on the same matter was refused on 18/8/2008.
[2] Decision of the Director dated 19/7/2016, §§6—9.
[3] Bangladesh Nationalist Party.
[4] Awami League.
[5] The decision on 19/7/2016 concerned BOR 3 and persecution. The decision on 1/12/2016 concerned BOR 2. On the latter, the applicant did not file any further information despite the invitation by the Director.
[6] Two working days were allowed for the mail.
[7] Lai Chi Kok Reception Center.
[8] Decision of the TCAB dated 27/3/2019, §27.
[9] Torture risk had already been rejected on 30/11/2012. BOR 2 risk was not yet assessed at this time.
[10] There was no evidence from the Director that its decision dated 1/12/2016 was sent to the last known address of the applicant. See TCAB decision dated 17/5/2019, §20.
[11] Decision of the TCAB dated 17/5/2019, §§43—57.
[12] This should be the screening interview in relation to the torture claim. See decision of the Director dated 19/7/2016, §10.
[13] Paragraph 23 above.
[14] [2019] HKCA 430.
[15] R v Governor of Whitemoor Prison and another [2020] 1WLR 2524 at §§51—53 considered.
[16] The principle in R v Secretary of State for Health and Social Care and another, [2021] 1 ALL ER 780, at §§39—42 considered.
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