Mizanur Rahman v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

HCAL 2972/2018

[2021] HKCFI 2333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2972 of 2018

BETWEEN

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 documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave to apply for Judicial Review be granted; and

2.  Applicant shall take out the originating summons for judicial review for hearing within 14 days after the day of this Order.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 4 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s 2^nd Decision”), which refused to extend time for him to file his Notice of Appeal.

2.The applicant did not attend the hearing before the court on 23 May 2019 without prior notice.  An Order (the “Order”) was made that his application was dismissed, but he was at liberty to apply to the court to set aside the Order.

3.Instead of applying to the Court to set aside the Order, the applicant took out an application for extension of time to appeal against the Order to the Court of Appeal.  The Court therefore treats his application as an application to set aside the Order.  In view of the Court’s decision, granting leave to the applicant to apply for judicial review of the Board’s Decision, it is unnecessary to have a hearing.

The applicant

4.The applicant is a citizen of Bangladesh.  He came to Hong Kong as a visitor on 16 July 2006.  He overstayed and was arrested by police.  He lodged his CIDTP (torture) claim on 15 February 2008.

5.He claimed that if refouled, he would be harmed or killed by members of the underground political party called Purba Bangla Sorbohara Party (“SP”).  SP is renowned for extorting money from rich people and kill anyone they consider acting against them.  One day, the president of his locality told him that he had information that the SP members would kill him and other AL members.  He was afraid and moved to live in other places.  He finally decided to leave Bangladesh for Hong Kong.  Details of his story are set out in the Director’s Decision described below.

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

7.By Notice of Decision dated 18 July 2014 (“the Director’s Decision”), the Director refused his claim on Torture risk, the BOR 3 risk and the Persecution risk for the reasons that his claim was unsubstantiated.  The Director found that the level of risk of him being harmed or killed by members of the SP if he returned to Bangladesh was assessed to be low [13]; that state protection was available to him [15] and that internal relocation was an option open to him [20].

8.By Notice of Further Decision dated 11 April 2017 (the “Director’s Further Decision”), the Director rejected his claim on BOR 2 risk for the reason that he was unable to establish, by evidence, his right to life under BOR 2 would be violated.

The Board’s Decision

9.The applicant appealed against the Director’s Decision.

10.To cut the story short, the applicant had applied for extension of time to file his Notice of Appeal twice.  For the time instance, he did not receive the Board’s letter because he had moved to another address and his BOR 2 risk assessment was being considered by the Director.  The Board extended time for him to file the Notice of Appeal.  After the Director had issued the Further Decision, which advised the applicant to lodge his appeal within 14 days of the Decision, the applicant did not do so.  Two months from the date of the Director’s Further Decision, the applicant applied to the Board for extension of time.  The Board, had considered that the Director’s Further Decision had been sent to his new address and that there was no reason for him not receiving it.  On top of these reasons, the Board also said:

“17. The Petitioner’s case is one of money extortion in his country by members from SP…The Petitioner provided nothing new in his NOP, apart from repeating general complaints about the inefficiency, political violence and corruption in Bangladesh. The Petition gave no new event or incident which might have changed his situation.”

11.The Board considered that the applicant had raised nothing new in his Notice of Petition which may constitute special circumstances that rendered it unjust not to allow the late filing of his petition.  It refused to extend time for him to file the Notice of Appeal.  His appeal was, in effect, dismissed by the Board.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 24 December 2018 for leave to apply for judicial review of the Board’s 2^nd Decision.

13.It is unnecessary to state his grounds for his application for extension of time to appeal as the issue before me is very much a procedural one.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.The Board’s Decision was made before the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377:

“20. We agree with the Judge that it is incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

17.Although the Board had set out the applicant’s claim in general in the Decision, it did not state whether it had considered the merits of the applicant’s case or it agreed with the decisions of the Director, stating its own reasons for its decision.  It is, therefore, arguable that the applicant may have an arguable case for judicial review of the Board’s Decision.

CONCLUSION

18.I therefore set aside the Order and grant leave for the applicant to apply for his intended judicial review.  There has been a history of delays in the proceedings by the applicant, the applicant shall take out the originating summons for judicial review for hearing within 14 days after the date of this Order.  The hearing fixed on 13 August 2021 shall be vacated.

Dated the 13^th day of August 2021

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