Nir Das v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 2637/2018

[2020] HKCFI 1906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2637 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 K.W. Lung:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Bangladeshi national. He had attempted to enter Hong Kong a number of times between 2005 and 2006, but he was refused entry by the Immigration Department. In February 2007 he entered Hong Kong illegally and was arrested by police on 23 October 2007. On 7 November 2007, he claimed protection from refoulement to Bangladesh. His application was rejected on 30 May 2011.

3.He was charged with the offence of illegal entry into Hong Kong and he was granted bail. However, he did not answer bail and was arrested under a warrant of arrest issued by the court. On 31 March 2014, he was convicted of the offence and other charges. On 26 June 2014, he lodged a non-refoulement claim.

4.His reason for his application is that if refouled, he would be subjected to multiple forms of discrimination and harassment because of his religion. He was also a supporter of the Awami League. In 1996, four members of the Bangladesh Nationalist Party (“BNP”) complained about him having a shop in the local market and his business was closed down. He suffered further harassment from people in the BNP, including being extorted. He did not report to the police in Bangladesh because of the political influence of the BNP on the police and because they are against Hindus.

The Director’s Decision

5.As the applicant had lodged his torture claim and failed before, the Director considered his application only in relation to the following risks:

a.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”);

b.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

c.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 under RC”).

6.By Notice of Decision dated 25 January 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

7.The applicant appealed to the Board but he was absent on the scheduled date of hearing, which is 23 April 2018. The Board proceeded to consider the application’s appeal on the papers.

8.By Decision dated 23 May 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and found:

“23. For those reasons the Board attaches no credence at all to the Appellant’s claim to have entered Hong Kong in search of international protection. …

32. For those reasons, the Board concludes that the Appellant does have a safe and reasonable internal relocation alternative and does not face a real risk of any form of harm upon return to Bangladesh.”

Application for leave to apply for judicial review

10.In his Form 86 filed on 22 November 2018 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.In his submission attached to Form 86 in support of his application, the applicant said:

“10. This Application is not made within 3 months of decisions being challenged and extension of time is required under Order 53, rule 4(1) of the Rules of the High Court, Cap. 4A. There are good reasons for an extension of time.

11. I was arrested by the Hong Kong Police Force in or around December 2017 and since then I was being detained. Subsequently, I was sentenced to 15 months’ imprisonment and was discharged from prison in October 2018.

12. I was then transferred to Immigration Department and was being detained at Castle Peak Bay Immigration Centre until now.

13. It only came to my knowledge that there was an oral hearing on 23 April 2018 and the Torture Claims Appeal Board has already made a decision in relation to my appeal to the refusal of my non-refoulement claim.”

DISCUSSION

The Director’s Decision

12.In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13.The applicant has not set out any exceptional circumstances.

14.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16.The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer. However, he said that he should have a hearing before the Board before it made its decision. He confirmed that he was being detained on the scheduled hearing date.

17.In the Board’s Decision at paragraph 7, the Adjudicator said:

“The Appellant’s claim is set out in the Notice of Decision, dated 25 January 2017, on the basis of interview and written statements. The Appellant did not appear to give evidence at the hearing before the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 23 April 2018 and the Board proceeds to make decision in his absence….”

18.Section 15 of Schedule 1A of the Ordinance provides:

(1) If a party to an appeal fails to attend a hearing, either in person or by a legal representative, the Appeal Board, on proof that the party has been served a notice of the hearing under section 13 of this Schedule, may proceed to hear the appeal in the absence of the party and, subject to subsections (2) and (3), determine the appeal.

(2) Before proceeding to determine an appeal after hearing the appeal in the absence of a party, the Appeal Board must—

(a) give the party written notice of the Board’s intention to do so; and

(b) state that the party may submit to the Board, within 7 days after the notice is given, a written explanation of the party’s failure to attend the hearing together with any documentary evidence supporting the explanation.

(3) If the Appeal Board—

(a) has not received the party’s written explanation together with supporting documentary evidence (if any) within the period specified in subsection (2)(b); or

(b) is not satisfied with the party’s written explanation or supporting documentary evidence,

the Board may determine the appeal by making a decision under section 23(1) of this Schedule despite the party’s absence at the hearing.

(4) If the Appeal Board is satisfied, on the basis of the party’s written explanation and supporting documentary evidence (if any) submitted under subsection (2)(b), that the failure to attend was due to reasonable cause, the Board may fix a date, time and place for hearing the appeal.

19.The Board has not set out the above procedural requirements of proving service of the hearing notice, giving written notice to the applicant to make representation on the reasons for his absence before making the decision.

20.Obviously, this is procedural irregularity, which will give leave to the applicant to apply for judicial review.

CONCLUSION

21.For the reasons above, I now give leave to the applicant to apply for judicial review of the Board’s Decision. The applicant must issue the originating summons for hearing within 14 days after the date of this decision in accordance with Order 53, rule 5 of the Rules of the High Court.

Dated the 10^th day of August 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