RE KHANDAKAR ALI MUZAMAN

HCMP 2452/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2452OF 2016

(ON AN INTENDED APPEAL FROM HCAL NO 185 of 2015)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 22 April 2016, P Li J [“the Judge”] refused to grant leave to the applicant to apply for judicial review regarding a decision of the Director of Immigration of 19 December 2014 and the dismissal of an appeal from that decision by the Torture Claims Appeal Board [“TCAB”] on 31 August 2015. The Judge came to that decision after a hearing on 22 February 2016 at which the applicant failed to appear.

2.  In the CALL-1 form of 22 April 2016, the Judge set out the background of the case, paragraphs 1 to 4 as follows:

“ 1. The applicant is from Bangladesh. He was born on 10 August 1981. He received primary education for 5 years. He used to be a farmer on family land. He lived with his mother, four sisters and one brother at Teljuri, P.S., Boalamri, Faripur in Bangladesh. His father passed away in 2013.

2. The applicant arrived Hong Kong in March 2006 on a valid passport. He was arrested by the police on 11 November 2010 for overstaying. He lodged his claim on 13 November 2010. He was on recognisance since 13 December 2010.

3. The applicant had not joined any political organisation or involved in politics. He claimed that he had a land dispute with his uncle. He feared that he would be harmed or killed by his uncle. He had no ability to relocate to other cities.

Grounds of the application

4. The applicant relied on the following incidents to support his claim:

a. His grandfather owned about one acre of agricultural land in Teljuri and Boalmari. The family grew potatoes, rice and vegetables for a living. When his grandfather passed away, the land was inherited by his father and uncle in equal shares.

b. In 2005, his uncle borrowed his father’s share of the land for one year for farming. However, after a year, his uncle refused to return the land. He thought it was because of the increasing development value of the land.

c. His uncle was a member of Bangladesh Nationalist Party (BNP). He was president of the Boalmari Police Station. He was also President of Freedom Fighters Unit (FFU) which was supported by the government. He did not know the duties of his uncle in these posts.

d. In December 2005, he tried to negotiate with his uncle but the latter refused to return the land. His uncle even threatened him and sent him away. He had not gone to the village court to settle the dispute. He just made a report to the Boalmari Police Station and a record was made—general diary (GD).

e. One evening in January 2006, while he was on his way home, his uncle and two men attacked him with spears. He was also punched and kicked. He shouted for help. The attackers ran away. He lost consciousness and was taken to a hospital for treatment. He recovered in a month. He took refuge at his sister’s place in east Teljuri village for about two months. He was safe there.

f. His father went to Boalmari Police Station to make a report. The police refused to register his complaint. His father told him that it was his uncle who influenced the police as he was the President of the Boalmari Police Station. He and his father did not report to other authorities as they would not take up a case refused by the local police station. He assumed other higher authorities would not help either.

g. Thereafter, his father and brother-in-law arranged a passport for him to leave Bangladesh for China. He stayed in China for 9 days before coming to Hong Kong. He left Bangladesh smoothly.

h. The land would be owned by him and his brother in equal shares after his father passed away. He was informed by his brother in June 2014 that the dispute had not been resolved since he left.

i. He was not aware that BNP members had been arrested for committing offences. He also did not know that the Awami League won the election in 2014 and was the ruling party since.”

3.  After adverting to the decision of the Director in rejecting the applicant’s claims under the Convention Against Torture and Article 3 of the Hong Kong Bill of Rights and the rejection of the appeal by the TCAB, the Judge recited the history of the proceedings at the court below at paragraphs 16 to 21:

“ 16. The applicant authorised Mr. Mahmood Kashif to file his Form 86 on 9 September 2015. He filed a copy of his recognizance (Form 8). He did not leave any contact telephone number. There was no indication whatsoever that the applicant had applied for Legal Aid.

17. Mr. Kashif voluntarily left his telephone number to the Registry of the High Court.

18. This court fixed a hearing on 22 February 2016. The notice of hearing was sent to his address as set out in the Form 86 by registered post. It was returned unclaimed on 12 February 2016. The applicant was absent on the hearing day. This court called Mr. Kashif but the phone was not registered any more.

19. In my view, the applicant had a duty to ensure that all his contact address and phone numbers should be updated promptly.

20. The applicant had the duty to prosecute his application for judicial review with reasonable diligence. I bear in mind the underlying objectives set out in O. 1A r.1 (b) & (c)—to ensure that a case is dealt with as expeditiously as reasonably practicable; to promote a sense of reasonable proportion and procedural economy in conduct of proceedings.

21. In the circumstances, I exercise the power under O.1B r.1(2)(l) to consider the leave application without a hearing despite the applicant indicated otherwise by virtue of O 53 r3(3).”

4.  The Judge gave his reasons for refusing leave at paragraphs 22 to 23:

“ 22. Having considered the above, I agree with the findings of the Director of immigration and the Adjudicator. I do not find any error in law or in procedure. I do not find any public law ground either.

23. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.”

5.  Under Order 53 Rule 3(4), the applicant had 14 days to appeal against the Judge’s decision.  He did not do so.

6.  On 14 September 2016, he issued a summons seeking an extension of time to appeal.  He accounted for the delay by saying that he did not receive the order of 22 April 2016 and the CALL-1 form.  In his affirmation of 14 September 2016, he said these documents (which were sent to the address he gave on his Form 86 as well as his summons of 14 September 2016) had been returned.  He said he only obtained copies of these documents when he made enquiries from the Registry on 13 September 2016.  

7.  The CALL-1 Form and the order were sent to the applicant at the address he provided to the court.  The address is the same as the address he stated in his summons and affirmation of 14 September 2016: Room A Ground Floor, 92 Pak Wai Tsuen, Kam Tin, New Territories. 

8.  The applicant did not explain in his affirmation what happened between 9 September 2015 (after he filed his Form 86) and 13 September 2016 which prompted him to make enquiries with the court in September 2016 but not earlier.  We do not understand why in his summons of 14 September 2016 he continued to use the address as his address for service when he claimed that documents sent to that address by post cannot reach him.  

9.  As the Judge pointed out in the CALL-1 Form, a litigant has a duty to ensure that the address for service is an effective address, meaning that documents which are sent to that address by post will come to his attention. 

10.  In those circumstances, the applicant must bear the legal consequence of his failure to receive notice of the order and the CALL-1 form in time.  The delay being inexcusable, we should not grant an extension of time unless the intended appeal has a real prospect of success: see SJ v Hong Kong Yaumati Ferry Co Ltd [2001] 1 HKC 125.

11.  In his summons of 14 September 2016, the applicant advanced the following as his intended grounds of appeal:

“ (a) The learned Judge was wrong in law in holding that there was no state acquiescence or involvement.

(b) Despite the Notice of hearing sent to me was returned unclaimed on 12 February 2016, the learned Judge did not exhaust all alternative such as serving the said Notice through bailiffs.

(c) The learned Judge failed to provide detailed reasons in support of his decision.”

12.  We do not see any merit in his intended appeal. He said the Judge was wrong in law in holding that there was no state acquiescence or involvement.  He cited MI [2014] HKEC 1598 and JKF [2014] HKEC 1952. 

13.  Whilst these authorities establish that state acquiescence or involvement can be shown by way of passive acquiescence through inaction on the part of the state authorities, whether a case of passive acquiescence has been made out must depend on the evidence and facts of each case.

14.  In the present instance, the Director came to these conclusions which are relevant to the question of passive acquiescence:

“ c. The police did record the land dispute in a GD. The police inaction, assuming it was under the instigation of the uncle, could not be linked to the Bangladesh government or it was a general pattern of the police in Bangladesh. In any event, he had not sought to complain through alternative channel.

d. There was no evidence, apart from his bare assertions, that the police was influenced by his uncle.

e. While there was information about the corrupt and ineffective police in Bangladesh, there were also recent reports of reform on police professionalism, anti-corruption measures, local councils to settle disputes. The government had taken steps against leaders of political parties for untoward conducts. The constitution of Bangladesh acknowledged rights of a citizen under the law and protection of life and liberty. There was reasonable state protection available in Bangladesh.”

15.  On appeal, the TCAB heard evidence from the applicant and made these findings:

“ 16. In evidence the Claimant said that he had filed a General Diary ("GD") with the police after his talk with his uncle (one week before the attack), during which his uncle had issued a death threat to the Claimant. He said that the document which he had submitted [HB 99] is a copy of the GD he filed.

17. The Claimant says that he was told by his father that he (his father) had gone to the police station on several occasions following the attack on the Claimant to file a complaint against his uncle but police did not take any action. The Claimant said during Interview 2 that he came to know that police did not register a case against his uncle.  He said “Later I came to know that my uncle instructed them not to do so”. [HB 104, A. 72]

18. When asked how he had come to know this, the Claimant said “I came to know from my father but 1 do not know how did my father got to know this but I only know my case was not registered”. [HB 104, A. 74]

...

28. Much of the Claimant's evidence is based on what he was told by his father and younger brother. His assertions as to future risk and lack of state protection, as well as his assertion that he cannot live safely anywhere in Bangladesh, is based on speculation.

29. Whilst hearsay evidence is not, of itself, inadmissible, the weight which can be attached to such evidence is, by its nature, greatly reduced. Hearsay cannot prove the truth of facts asserted on the basis of such evidence. Speculation or theory can never support any aspect of the Claimant's case.

...

39. All of the evidence as to future risk relied on by the Claimant is based on his own unsupported assertions. These assertions are, in turn, based solely on hearsay and speculation. In the circumstances, I am not persuaded on the totality of the evidence, even to the low standard applicable, that the Claimant has established that he would face a risk of ill-treatment of any sort if he is refouled to Bangladesh.

...

41. Even if the Claimant suffered injuries at the hands of his uncle in the past, those injuries did not constitute torture as defined in Section 37U of the Ordinance. Neither were those injuries inflicted by a public official or someone acting in an official capacity as required by the same section.  The injuries arose from a private land dispute between the Claimant and his uncle.

42. I am not persuaded, on the totality of the evidence, that the Claimant would face any risk of ill-treatment in future which would amount to torture if he is refouled to Bangladesh.”

16.  On these findings, we are not satisfied that the Judge erred in holding that there was no state acquiescence or involvement on the facts of this case.

17.  As regards his complaint against the Judge deciding the matter despite the notice of hearing having been returned, as we have said above the applicant bore the responsibility of ensuring that his address for service would be effective.  The court does not owe him any obligation to serve the notice by bailiff or any alternative mode.  There is no merit in this complaint.

18.  As regards the reasons given by the Judge for his decision, though they were brief, it was clear that after reviewing the papers at some length the Judge could not find any error of law or procedure and agreed with the findings by the Director and the TCAB.  That is sufficient for the purpose of refusing leave (which is meant to be a filtering process).

19.  For these reasons, this court will not grant any extension of time to the applicant to pursue a hopeless appeal. 

20.  The summons of 14 September 2016 is dismissed.