MIA MD DULAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2171/2018

[2022] HKCFI 2641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2171 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 the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.   extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 June 2017 refused; and

2.   the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  A torture or non-refoulement claimant may before his or her claim is decided withdraw the claim by notifying an immigration officer, and after it has been so withdrawn, it may only be re-opened upon the claimant satisfying the immigration officer on certain terms and conditions as required under Section 37ZE of the Immigration Ordinance, Cap 115 as follows:

“(1) A claimant may, before a torture claim is decided under section 37ZI, withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that –

(a) since the withdrawal, there has been a change of circumstances that –

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.

(3) If an immigration officer decides to re-open a person’s torture claim under subsection (2), the immigration officer must, by written notice, inform the person of the decision.

(4) If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of –

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right under section 37ZR to appeal against the decision.…”

2.  In the present case, the Applicant is a 55-year old national of Bangladesh who was arrested by police on 26 February 2014 for illegally entering and staying in Hong Kong for which he was subsequently convicted and sentenced to prison for 15 months, during which he submitted a written signification for non-refoulement protection on the basis that if he returned to Bangladesh he would be harmed or killed by the local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”).

3.  On 15 May 2015, the Immigration Department commenced the screening process of the Applicant’s claim by providing him with legal representation from the Duty Lawyer Service (“DLS”) and requiring him to return his Non-refoulement Claim Form (“NCF”) setting out details of his claim by 3 July 2015.

4.  On 16 June 2015 his lawyer from DLS informed the Director of Immigration (“Director”) that they had no further instruction to act for the Applicant, and by a letter of the same date the Applicant informed the Director of his wish to withdraw his non-refoulement claim.

5.  By a letter dated 23 June 2015 to the Applicant, the Director acknowledged his request to withdraw his non-refoulement claim, and confirmed that it had been so treated as withdrawn and that no further action would be taken in respect of such claim.

6.  However, almost two months later on 19 August 2015, the Applicant in writing to the Director to object to his deportation and requested to re-open his claim and stated as follows:

“I object to my deportation. I want to reopen my non-refoulement claim because I spoke to my brother in Bangladesh he has informed me that my problem is not solved. If I return back to Bangladesh, I shall be killed. I do not want to go back.”

7.  On 1 September 2015 the Applicant attended an interview before an immigration officer when he was served with a notice from the Director requiring him to satisfy an immigration officer of those terms and conditions under Section 37ZE (2) of the Ordinance as noted above.

8.  On the same day the Applicant in writing provided the following statement in support of his request to re-open his claim:

“My current situation is like this – recently (date unrecalled) I had a phone conversation with my older brother Mr Shahed MIA who is in Bangladesh. In that conversation, my brother told me, “if you come back, you will be killed by your political enemies – so do not come back.

My brother did not go into details as our phone conversation was not long. I did not contact any other person to verify this information because I trust my brother and believe what he said. I do not have any evidence to submit other that what was said by my brother.

I do not know how my brother found out that the situation in Bangladesh has become dangerous for me to return but I trust my brother.”

9.  By a written notice dated 2 September 2015, the Director refused to re-open the Applicant’s claim on the basis of all the available information that it is not accepted that since his withdrawal of his claim there has been a change of circumstances that could not reasonably have been foreseen by him when he gave the withdrawal notification, or that such change when taken together with the material previously submitted could increase the prospect of success of his claim, or that there is any special circumstances that would make it unjust not to re-open his claim.

10.  On 24 September 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not conduct any oral hearing and dealt with the appeal in the absence of the Applicant and on paper, and on 16 June 2017 the Board dismissed his appeal.

11.  In its decision the Board found the Applicant’s reasons for his request all based on hearsay and empty statements devoid of substance, that it is not acceptable that he did not specify or bother to ask his brother for more information concerning the alleged change of circumstances in Bangladesh since the withdrawal of his claim, and that he did not provide any further evidence other than his bare assertions, and that there were no special circumstances that would make it unjust not to re-open his claim.

12.  On 9 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that the decision was unreasonable in failing to consider all the materials raised in his claim or give sufficient reason for its decision but without providing any details or particulars or elaboration as to how it did so, nor did he request any oral hearing for his application.

13.  By then the Applicant was also seriously out of time with his application, as 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.

14.  As the last day of the three-month period for him to file his Form 86 fell on 16 September 2017, the Applicant was therefore more than 1 year late with his application, and in considering whether to extend time, the court shall 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: AW v Director of Immigration[2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of more than 1 year must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay.

16.  As for the merits of his intended application, as noted above the Applicant has also failed to put forth any proper or reasonably arguable basis for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in the process of his appeal to the Board or in its decision being clearly and properly identified by the Applicant, and given such bare, vague and uncorroborated assertions of the Applicant when he, as rightly observed by the Board, did not even bother to obtain further details and information from his brother during their telephone conversation for his alleged change of circumstances regarding his situation in Bangladesh since the withdrawal of his claim just 2 months ago, which looks suspicious to me just an attempt to block the deportation order thereafter made by the Director against him instead of any real change of circumstances as alleged that caused him to request to re-open his claim. As such and for the reasons given, I do not find any merits in his intended application either.

17.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.  In the premises and having considered the decision of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s request to re-open his non-refoulement claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave 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