JAME AHMED alias TARVEZ AMEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 551/2019

[2022] HKCFI 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 551 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;

1.      Extension of time to apply for leave to apply for Judicial Review be refused; and

2.      Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 February 2017 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated29 March 2018 (the “Decision”).

2.  The Applicant is a national of Bangladesh with two different identities.  He had previously entered Hong Kong on 22 September 2002 under the identity of AHMED Jame, born in March 1971.  He overstayed and was convicted of possessing an identity card relating to another person and breach of condition of stay.  He was deported on 22 August 2003 after serving a short sentence.  Notwithstanding the deportation order, he travelled to Hong Kong on several occasions since 10 May 2006 under his present identity of TARVEZ Amen, born in June 1973.  He last entered Hong Kong on 17 April 2013.  He was permitted to remain until 1 May 2013.  He overstayed and was arrested on 20 February 2014.  On 2 July 2014, he was convicted of seven counts of breach of deportation order and sentenced to a total of two years’ and eight months’ imprisonment.  On 24 March 2014, he raised a non-refoulement claim. 

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By the Notice of Decision dated 22 February 2017, the Director rejected his claims under all four applicable grounds.  He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 29 March 2018, the Board dismissed his appeal.  On 26 February 2019, he applied for leave to apply for judicial review of that Decision.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

4.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[5] and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: see Re Moshsin Ali[6].  For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. 

5.  The Decision was made on 29 March 2018.  It was not until 26 February 2019 that the Applicant sought judicial review of that Decision.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  By 26 February 2019, his application is almost eight months out of time.  To obtain extension of time for making an application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[7].

6.  Merits is usually a very important factor.  It was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[8] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  Where the delay is not very substantial, merits is usually the determinant factor.  It would be convenient to examine merits first, which would also dispose of the substantive application, if extension of time is granted.

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, his claim is based on his fear that, if refouled, he will be at risk of harm from members of the Bangladesh Awami League political party (“AL”) for refusing to quit the Bangladesh Nationalist Party political party (“BNP”) to join AL.

8.  The Applicant was born in Tangail, Bangladesh and received about 13 years of education.  He became the general secretary of Bangladesh Jatiotabadi Chhatra Dal of Ward No. 16 of Tangail Sadar Sub-District in Tangail District, which was the student wing of BNP.  He was selected as the organizing secretary of the volunteer wing of the BNP in 1995.  He quit the post but continued his participation as an ordinary member.  He also acted as an advisor and provided financial assistance to BNP from time to time.

9.  Awami League, came into power in 1996 and started torturing their opponents (including members of the BNP).  Around 1997, about 10 to 12 AL people chased the Applicant and his friend, Khokon.  He ran away but Khokon was killed.  The Applicant fled to Rangamati District and stayed there until 1999.  He then stayed in Khagrachhori Dsitrict from 1999 to 2003.  He worked in Mirpur, Dhaka between 2003 and 2008. During this period, the AL people occasionally visited his home to look for him; but no one came to his house after 2008.  The Applicant offered financial assistance to the BNP on an irregular basis.

10.  Since March 2009, on an irregular basis, the AL leaders threatened the Applicant over phone and asked him to quit BNP and support the AL instead.  The Applicant tried to obtain assistance from the Bangladeshi authorities but to no avail.

11.  The Applicant lived with his wife in the Tangail district and started a shop there in 2010.  He received death threats from some AL people in person and through his employee. They also demanded that he join AL.  The Applicant gave the AL people around 50,000 to 70,000 Bangladeshi Taka on several occasions to avoid being harassed.

12.  On a day in early 2012, six to seven AL people demanded the Applicant to support the AL and not the BNP.  They demanded 40 Lakh from him and threatened to stop his business and kill him if he did not agree.  The Applicant said he could never afford such a sum.  Then the AL people used abusive language towards him but did not assault him.  The incident lasted for half an hour.

13.  The Applicant file a report at the police station but the police insulted him and ordered him to leave immediately.  About a week later, the AL people discovered his attempt to file a report.  They vandalized his shop.  They told his employee that he should not have made a police report and ought to have given money to them.  They asked his employee for the Applicant’s whereabouts and beat the employee with hockey sticks.  The Applicant suffered about 322,000 Bangladeshi Taka loss in the incident.  The police arrived at the scene and questioned the people nearby but did not take any action.

14.  The Applicant fled to different places in Bangladesh with the help of his friends and a BNP supporters.  While staying in Kagujitola, he went to Dhaka to attend a secret party meeting.  After leaving the meeting, he was targeted by a group of AL supporters armed with hockey sticks and a long chopper.  They called his name and rushed at him.  They did not target his companions.  The Applicant managed to escape.  His friend made a report to the police station on his behalf, but the police refused to register the complaint upon learning that AL members were involved.

15.  The AL supporters kept looking for the Applicant at his parents’ house.  The Applicant fled to Mainland China on 7 April 2013 and then to Hong Kong on 8 April 2013.

The finding of the Board

16.  The Board had two main concerns about the credibility of the Applicant raised by his use of two different identities to enter Hong Kong and the almost one year’s delay before lodging his non-refoulement claim.  At the hearing before the Board on 19 January 2018, the Board attempted to discuss these concerns with the Applicant and invited him to take the opportunity to address the Board’s queries.  The Board also warned him that if he did not take the opportunity to address those queries, the Board may decide against him.  He was told that the hearing was his last chance to present his case.  Despite these encouragements, the Applicant insisted that he did not wish to say anything or answer any questions.  He was satisfied that the Board would come to a decision relying wholly on the evidence in the hearing bundle. 

17.  The Applicant’s credibility was in issue because he had used two identities to enter Hong Kong, either one of which must be false.  He gave no convincing explanation as to why he had used two different identities.  He refused to answer the Board’s queries with knowledge of the adverse consequence and prevented the Board the opportunity to allay its concern.

18.  More importantly, the records showed that he had visited Hong Kong in September 2002 and returned to Bangladesh in August 2003; then visited Hong Kong for business in May 2006 and retuned to Bangladesh in July 2006; and between 10 May 2006 and 17 April 2013, he had entered and left Hong Kong on several occasions.  It was during this period that he said his life was at risk.  Despite that, he had no problem returning to Bangladesh in 2006.  He also kept quiet about his trips to Hong Kong when describing his past.  Yet, he did not make his claim for protection in the previous trips but only did so after his arrest.  He deprived the Board of the opportunity of testing his credibility and the credibility of his case by asking him questions.  In the Board’s view, all these damaged his credibility.

19.  The Board considered the Applicant’s case inherently incredible and that he must have overstated his fear as he was able to return to Bangladesh from Hong Kong in 2003 and again in 2006.  It also had doubts about the truthfulness of his alleged connection with and support to BNP.  The Board noted that he was only an ordinary member but he gave away “a fortune” of about two to four times his monthly salary each year to BNP.  It also had doubts as to how the AL people found out about his contributions and why they targeted him.  The Board accepted the Applicant’s evidence about his personal background and that he was able to travel freely and make a living for several years in different cities around Dhaka in Bangladesh, but rejected his claims that he faced any real risk from AL supporters as groundless, fanciful and not well-founded.

20.  The Board held that even if it were to accept the Applicant’s claims about being targeted by the AL people, the AL people did not seem to have any real intention to cause him serious harm.  The Applicant only had one direct confrontation with the AL people in Tangail where they verbally abused him for half an hour and beat up his employee.  But they did not harm him.  The Board also doubted whether the AL people targeted him because of his political affiliations or because of his business or monetary benefits. 

21.  The Board held that the state of Bangladeshi did not appear to have any adverse interest against the Applicant and there was no evidence that the alleged ill-treatment was condoned by the state.  On the basis of the Country of Origin Information (“COI”), the Board found that state protection would be available and there was no credible evidence that the Applicant could not access state protection.

22.  On the issue of internal relocation, the Board held that as an able bodied young man it would not be unduly harsh to expect him to relocate to Chittagong or Dhaka.

23.  The Applicant did not claim that the AL people had professed to be state actors.  The Board found there was no reliable evidence that any public official or persons able to wield the authority of the government and/or state had any connection with the AL supporters who had allegedly attacked or ill-treated the Applicant or had acquiesced in the attack or ill-treatment.

24.  It found there was no or no reliable evidence that the Applicant has suffered physical and/or mental ill-treatment of the requisite severity; that the perpetrators ill-treated the Applicant with an intention listed in the definition of torture in section 37U(1) of the Immigration Ordinance.

25.  It found there was no or no reliable evidence that the alleged ill-treatment of the Applicant had any relevance to the interest and/or benefit of the Bangladesh government.

26.  It found there was no or no reliable evidence that the Bangladesh government was unwilling or unable to afford protection to the Applicant or to help him for a reason protected under the 1951 Convention relating to the status of Refugees or that the Applicant was unwilling to return to Bangladesh because of a well-founded fear for any grounds under the Convention.

27.  Applying the law applicable to non-refoulement protection under the USM, the Board found that the Applicant had failed to prove his entitlement to protection under any of the four applicable grounds under the USM.  Hence, it dismissed his appeal against the Notice.

The legal principles applicable to judicial review

28.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[9].

Grounds for judicial review

29.  The Applicant did not state his grounds for judicial review in his Form 86.  In his supporting affirmation, he made the following complaints:

“(1) Information provided [by the Director or the Board] was biased and irrelevant;

(2)   [The Board] failed to determine [his] threat upon [his] return to [his] native country; and

(3)   [The Decision was] based on information provided was neglected.”

30.  These grounds are lacking in particulars.  He did not identify what information provided by the Director or relied on by the Board was biased and/or irrelevant and what relevant information had been ignored (neglected) by the Board.  These complaints are mere assertions.  His complaint about the Board failing to find he was under threat is actually a complaint against the finding of fact by the Board.

31.  He had been invited by the Court via its letter dated 13 December 2021 to advise the Court of his first language and telephone contact number and to file submissions.  The letter was posted to him at his latest address provided to the Court on 9 September 2019.  He did not respond.  The letter has not been returned through the post.  There was nothing to suggest that the Applicant had moved or has not received the letter.

32.  In the absence of grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk, if returned to Bangladesh. 

Merits of the substantive application

33.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant not credible and that he has failed to prove the factual basis to support of his claim.  It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could not detect any error of law in the Decision.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Length of the delay and the explanation for the delay

34.  As explained in paragraph 5 above, the Applicant’s application is almost eight months out of time.  The delay is substantial in the context of the statutory period of three months to apply. He did not give any explanation for the delay and did not respond to the Court’s invitation for submission.  He has been sleeping on his rights.  The Court could have specifically invited an explanation from him.   But in view of the substantial delay and the absence of any realistic prospect of success, this is unnecessary.  For these reasons alone, the Applicant should be barred from pursuing his rights in a judicial review.

Balance of prejudice to the applicant and the proposed respondent if extension of time is granted

35.  As the intended judicial review has no realistic prospect of success, the Applicant will suffer no prejudice, if no extension is granted.  The prejudice to the proposed respondent and to public administration, if a challenge is allowed to proceed, is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. 

No questions of general public importance

36.  The intended application is essentially an appeal against the finding of fact by the Board dressed up as an application for judicial review.  It does not raise any questions of general public importance which are likely to have to be resolved by the courts in any event.

Conclusion

37.  The application for leave to apply for judicial review is late for a very substantial period.  The Applicant has no reasonable explanation for the delay; the substantive application has no realistic prospect of success; the Applicant will suffer no prejudice if extension is not granted but the proposed respondent will suffer serious prejudice if extension is allowed; and the application does not raise any questions of general public importance.  All these considerations point against granting extension of time.  Accordingly, the Applicant should not be granted an extension of time to enable him to file this application.  His application is therefore refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] Section 37ZR of the Immigration Ordinance, Cap. 115

[6] [2018] HKCA 549

[7] CACV 63/2015 (unreported) 3 November 2015

[8] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[9] [2018] HKCA 524 at para 14(1)