MD DELWAR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1308/2018

[2021] HKCFI 733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1308 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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 3 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application is more than three months after the Board’s Decision and is therefore late. I shall deal with this issue below.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application 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 Bangladeshi national. He came to Hong Kong in 2004 as a visitor. He overstayed. He was arrested by the Immigration Department for unapproved employment in Hong Kong and he was repatriated. On 19 April 2013, he came to Hong Kong and lodged his non-refoulement claim on 8 April 2014.

5.  He claimed that if refouled, he would be harmed and killed by the people of the Awami League Party (“AL”) because of his past participation in the Bangladesh Islami Chhartra Shibir in 1988/1989 and the Bangladesh Jamaat-e-Islamic Party (“JEP”) in 2003. He further claimed that police in Bangladesh had framed up charges against him.

6.  He was a JEP member. He ran his business in trading electronic appliance, gold, silver and garments. He was approached by people of the AL, asking him to join the AL. He refused to do so. He was a nominee for the candidacy for the Union Council Chairmand Election on behalf of JEP. Mr. Zakir of the AL threatened him that if he did not withdraw from the election, he would be killed. Mr. Zakir had caused police to frame up charge against him. He also caused injunction against his shipments of goods. He further said that under the influence of the AL, police framed up charges of vandalizing public properties and disrupting the police. He therefore felt that it was not safe for him to remain in Bangladesh and he left for Hong Kong. Details of the incidents are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decisions

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

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

8.  By Notice of Decision dated 22 May 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm from the people of the AL/Mr. Zakir or the Bangladeshi police was assessed to be low [23]; that state protection was available to him [26] and internal relocation was an option open to him [29.2].

9.  By Notice of Further Decision dated 30 November 2016 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk as he failed to establish a personal and real risk of being arbitrarily deprived of his life if he returned to Bangladesh. [7]

The Board’s Decision

10.  The applicant appealed to the Board against the Director’s Decision and attended the hearing before the Board on 23 December 2016 and 6 February 2017 respectively.

11.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision and the Director’s Further Decision for the reasons as set out below.

(1)  The Board considered the future risks that the applicant might face and found that future risk of harm from the AL was not substantiated. [35]

(2)  The evidence and the country of origin information showed that his life would not be seriously jeopardized if he returned to Bangladesh. [36]

(3)  The applicant failed to displace that state protection would be available to him. [37]

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 6 July 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he said that his life would be in danger if he returned to his country.

DISCUSSION

14.  As mentioned in paragraph 1 above, this application is late (the Board’s Decision being 3 October 2017 and this application, 6 July 2018). The Court of Final Appeal in Re H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall therefore consider the merits of the case.

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

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

“13.… …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.”

17.  I note that in the Board’s Decision, it seems that the Board had not assessed each of the risks in paragraph 7 above individually. It only mentioned the Persecution risk. In its conclusion, it affirmed the decisions of the Director’s Decision and the Director’s Further Decision.

18.  The applicant’s ground in support of this application does not assist his application.

19.  I bear in mind that the applicant is unrepresented and it would be difficult for him to identify the technical issue of the Board’s Decision that the risks were not separately and individually assessed.  In Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726 §12, the Court held that the adjudicator was entitled to re-examine the evidence in relation to the facts under section 18 of Schedule of the Immigration Ordinance, Cap. 115. In fact, he is under a duty to do so. The Board is therefore entitled to rely upon the facts found by the Director in the Director’s Decision and the Director’s Further Decision. Having done so, it is entitled to affirm the Director’s Decision and the Director’s Further Decision. The Director had assessed his case in respect of each of the risks in paragraph 7 separately and individually.

20.  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.

21.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

22.  I therefore refuse to extend time for the applicant 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