Ahammad Ullah v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2774/2018

[2022] HKCFI 580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2774 OF 2018

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.

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

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decisions dated 9 June 2017 of the Board (“the Board’s Decision”).  His application filed on 5 December 2018 is late for about 18 months. I shall deal with this issue below.

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) and the interested party is the Director of Immigration (the “Director”).

3.The applicant does not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of RHC, I shall consider his application on the papers.

The applicant 

4.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 15 June 2009 and was arrested for illegal remaining on the same date.  He lodged a torture claim on 18 June 2009, which was not completely assessed and subsequently was taken as a non-refoulement claim upon the commencement of the unified screening mechanism.  The applicant’s claim was made on the basis that, if refouled, he would be arrested by the Bangladeshi authorities because of a false case filed against him.  He also feared that he would be harmed or killed by members of Awami League (“AL”) because of different political affiliations. 

5.According to the applicant, he had been a member of Bangladesh Nationalist Party (“BNP”) since 2003.  He was actively involved in the BNP events and thus received threats from the political rivalry AL.  Prior to early 2007, he encountered three incidents with the AL members, during which he was attacked once by the AL members with bare hands for his disruptive acts in an AL party.  In around 2006, the applicant met his girlfriend Rojina.  Rojina’s uncle Sanjay was a local leader of AL and her mother also had a bad impression on the applicant.  The applicant suspected that they filed a false case against him, leading to his arrest, detention and the assaults by the police.  After his release on bail, he was informed that there were two more false cases filed against him.  Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out in paragraph 6 of the Notice of Decision dated 7 January 2015 by the Director (“the Director’s First Decision”) and paragraphs 7 to 25 of the Board’s Decision as 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 the Director’s First Decision, the Director refused his claim on Torture risk, BOR3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that there was no substantial evidence for believing that he would be subjected to the risks he alleged upon refoulement [16]-[17]; that state protection would be available to him [18] and that internal relocation was an option open to him [19]-[22].  In the Notice of Further Decision dated 27 April 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that his right to life under BOR2 would be violated if he returned to Bangladesh. 

8.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.  

The Board’s Decision

9.The applicant appealed the Director’s Decisions to the Board.  On 6 November 2015, he attended the scheduled oral hearing before the Board, during which he asked for extension of time for him to obtain evidence from Bangladesh.  The Board granted leave to him and extended time to 5 December 2015 for him to submit further evidence [26]-[27].  The Board had considered his further evidence [29]-[30].  

10.Having reviewed the documents submitted by the applicant, the Board identified several inconsistences between the documents and the applicant’s evidence.  It also noticed that some of the documents provided were for events between 2012 and 2014 when the applicant was already in Hong Kong [49]-[50]. The Board found that the applicant failed to provide medical evidence to support his alleged injuries despite having the opportunity to submit further evidence to the Board [54].  It also found that the applicant’s membership with BNP already ceased when he left Bangladesh in 2008 and it was unlikely he would face any political persecution after ten years [61].  Further, the Board was of the view that state protection and internal relocation were both available to the applicant [64]-[69].  Thus, the Board rejected his claim on all applicable grounds and dismissed his appeal.      

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 5 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmations in support of his application, he enclosed the hearing bundle without specifying any ground in support of his application.

DISCUSSION

13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay of more than 2 years is, of course, serious. However, I shall first consider the merits of the applicant’s case.

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

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13 (1).… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.Both the Director and the Board had found that the applicant did not accept his evidence on the facts. There is no valid ground to challenge the Board’s Decision.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19.I therefore refuse to extend time for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 2^nd day of March 2022

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