Md Ali Akber Morad v. The Director of Immigration and Another

HCAL 1324/2018

[2020] HKCFI 101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1324 of 2018

BETWEEN

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 Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Bangladesh who arrived in Hong Kong on 8 September 2006 with permission to remain as a visitor up to 22 September 2006 when he did not depart and instead overstayed and was arrested by police on 7 June 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”), and when his torture claim was rejected on 2 January 2014, he then raised a claim for non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Himel, Hosenpur, Bangladesh, and in 2002 became a supporter of AL when he was made a secretary of its student wing in his local district.

3.In about 2006 the Applicant became dissatisfied with some of the policies of AL and decided to change his support to its rival party Bangladesh Nationalist Party (“BNP”),much to the anger of his fellow AL supporters who had on several occasions demanded that he rejoined AL, and when he refused, they threatened to attack him with knives and other weapons, but on each occasion he managed to escape without serious injuries.

4.The Applicant did not report any of the incidents to the police, but as he was still fearful for his life, he fled to Dhaka after the last incident to take shelter in his sister’s place until 8 September 2006 when he departed Bangladesh for Hong Kong where he subsequently overstayed, and upon his arrest by the police, he then raised his torture claim,and after his torture claim was rejected, he raised his claim for non-refoulement protection,for which he completed a Supplementary Claim Form on 2 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 10 March 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk, including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for those AL supporters to locate him.

7.On 27 April 2017 the Applicant filed his Notice of Appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but he was then out of time with the filing of his Notice of Appeal, as section 37ZS(1) of Part VIIC of the Immigration Ordinance, Cap 115 provides that an applicant who wishes to appeal against the Director’s decision must file the notice of appeal with the Board within 14 days after notice of the decision is given to the applicant, unless late filing of the notice is allowed by the Board.

8.As for the late filing of the notice of appeal, section 37ZT(1) of the Ordinance provides that the notice must include an application for late filing with a statement of the reasons for the late filing, and must be accompanied by any documentary evidence in support of such reasons, and subsection (2) provides that the Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing, and in doing so it may only take account of:

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons;and

(b) any other relevant matters of fact within the knowledge of the Board.

9.Subsection (3) then provides that if the Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing and must by written notice inform the Applicant accordingly.

10.Likewise, subsection (4) requires the Board, if it does not allow the late filing of the notice of appeal, to so inform the applicant by written notice of its decision to refuse the notice as it is filed out of time.

11.In its preliminary decision dated 12 April 2018, the Board found that the last day of the 14-day period for the Applicant to file his Notice of Appeal against the Director’s decision of 10 March 2017 fell on 27 March 2017 after adding in two days for service of the decision, and hence the Applicant was late by one month when the Board received his Notice of Appeal on 27 April 2017: [2].

12.For his late filing of his Notice of Appeal, the Applicant gave the following reasons in the statement in section 5 of his Notice:

“ I only receive Decision on 24 April 2017. I do not receive the letter of decision then have to appeal. I go for signing recognizance and then they tell me that my case refused so I call and went there to collect my decision.” [sic]

13.In its decision the Board did not accept these reasons as sufficient to explain the Applicant’s delay, that it was not satisfied that any special circumstances have been shown,and therefore refused the late filing of his Notice of Appeal.  

14.On 9 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim as unfair and unreasonable as required by the Wednesbury test;

(2) that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his claim as well as his appeal;

(3) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim;

(4) that the Director failed to take into account that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give sufficient weight to those relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect;

(6) that the Director only relied on those COI which suited his pre-conceived conclusion which was a clean case of unfair attitude shown against the Applicant which should render his decision void;

(7) that the Director failed to consider that corruption and incompetency of the administration in his home country was still a very serious problems as supported by the reports of various human rights organization which stated testament to the Applicant’s assertions;

(8) that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law; and

(9) that the Adjudicator failed to make sufficient enquiry before finalizing the decision.

15.These are however mainly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, and as such I do not find any of them reasonably arguable for his intended challenge, except for the last ground: that the Adjudicator failed to make sufficient enquiry before finalizing his decision not to allow the late filing of the Applicant’s notice of appeal.

16.As has been held by the Court of Appeal in Re Qasim Ali [2019] HKCA 430, 8 April 2019, since section 37ZT(3) of the Ordinance gives the Board the discretion to allow the late filing of a notice of appeal if it is satisfied that by reason of special circumstances it would be unjust not to do so, in identifying what circumstances are relevant, the Board should take account of the merits of the appeal regardless of the procedural breaches or the lack of explanation therefor: [26].

17.In his Notice of Appeal the Applicant clearly in section 2 set out various grounds in support of his intended appeal, but the merits of which the Board did not appear to have taken account in its decision to refuse the Applicant’s late filing, and if it had, it did not appear to have provided any or sufficient reason or explanation as to why they would not be accepted as special circumstances that it would be unjust not to allow the late filing, as it merely stated in its decision as follows:

“ 17. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in SSHD v Begum. Those principles are that there is a need to enforce compliance with rules as set out in the Ordinance; and the need for this type of application to be considered efficiently and at proportionate cost.

18. The Board does not accept that the Appellant’s reasons are sufficient to explain the extraordinary delay in lodging his Notice of Appeal and notes that it is well established in international law and guidance that an asylum-seeker has a duty to cooperate with the authorities. The Board is not satisfied that any special circumstances pursuant to section 37ZT(3) of the Ordinance have been shown.

19. The late filing of the Notice of Appeal is disallowed pursuant to section 37ZT(4) of the Ordinance.”

18.It is therefore in my view reasonably arguable that the Board failed to take account of the merits of the appeal in its decision to refuse the Applicant’s late filing of his Notice of Appeal, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

19.Accordingly and for the reasons given, I grant leave to the Applicant to apply for judicial review of the Board’s decision based on the ground stated above, and direct that he shall file an originating summons within 14 days of this decision, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 7^th day of January 2020.

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