Mazumder Arifur Rahman v. Director of Immigration

HCAL 23/2022

[2022] HKCFI 1607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 23 of 2022

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 Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 2 September 2021 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 2 September 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director and his subsequent appeal/petition to the Torture Claims Appeal Board (“the Board”) had been voluntarily withdrawn by him, and that he was repatriated to his home country in Bangladesh in 2016.   

2.The Applicant is a 48-year-old national of Bangladesh who first arrived in Hong Kong on 20 October 2008 as a visitor with permission to remain up to 27 October 2008 when he did not depart and instead overstayed, and was arrested by police on 13 August 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim under the Unified Screening Mechanism (“USM”) on the basis that if he returned to Bangladesh he would be harmed or killed by his uncle over their business dispute in his home district which led to a false claim being made against him for being involved in a local murder case.

Previous Non-Refoulement Claim          

3.By a Notice of Decision dated 15 January 2015 the Director rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle and associates or the police upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of them to harm or kill the Applicant or that he was being pursued by the police over any false charge as he was able to leave the country without any problem, that it was in any event a private personal dispute between him and his uncle without any 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 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for his uncle to locate him.

5.On 28 January 2015 the Applicant lodged an appeal to the Board against the Director’s decision, but before any final determination of his appeal was made, the Applicant on 11 May 2016 in writing to the Board requested to withdraw his appeal, and by a notice of decision dated 16 May 2016, the Board allowed his request and dismissed his appeal, and that it also confirmed the Director’s decision. On 6 July 2016 the Applicant departed Hong Kong to return to Bangladesh.  

Request To Make Subsequent Claim

6.Some 5 years later on 6 May 2021 the Applicant entered Hong Kong illegally from Mainland China, and after his arrest by the police on 14 June 2021 and was remanded in Lai Chi Kok Reception Centre (“LCKRC”), he made a request to the Immigration Department by a letter dated 9 July 2021 to re-open his previous non-refoulement claim by stating as follows:

“I want to make a Torture Claim … I make a humble request to open my previous non-refoulement claim. Sir, when I was coming to Hong Kong from China on May 06 2021, my shoulder bag with all my documents inside, fell on the river (sea). Sir, there is no security to my life and to my goods in Bangladesh. That is why I was compelled to come to Hong Kong again. Sir, I make a humble request to please accept me under the Torture Claim. Sir, after I am released from the prison. I will be able to arrange for all my documents …..I wanna Reopen my case no: RBCZ-2156-09. Because I had lost all Documents So, I like to request to Immigration Department Officer please come to visit me (as) soon as possible.”

7.The Director found the basis of the Applicant’s claim essentially the same as his previous claim, but as Section 37ZF(3) of the Immigration Ordinance stipulates that a claimant having given notice to withdraw a claim and subsequently left Hong Kong must not be allowed to re-open such claim, the Director therefore treated the Applicant’s application as a request to make a subsequent claim.  

8.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

9.Accordingly, on 19 July 2021 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, but which the Applicant failed to respond or to comply with the Director’s requirement.

10.By a Notice of Decision dated 2 September 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

11.On 7 January 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in which he stated as follows:

“… I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.”

12.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.As the last day of the three-month period for him to file his Form 86 fell on 2 December 2021, the Applicant was therefore more than 4 weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of more than 4 weeks must be considered as substantial and inordinate, for which he explained at the hearing of his application that he was then being detained at the LCKRC, and had had to ask his friends on the outside to seek legal assistance with his application, but by the time he was able to do so, he was already out of time with his application.

15.While it is accepted that being detained in custody, there would be the inevitable delay and inconveniences with incoming and outgoing mails as well as accessing legal assistance by inmates or detainees, as in the Applicant’s case, but they cannot in my view justify his serious delay upon taken into account of the total amount of time that he had had to make his application under the circumstances, and I am not satisfied that the Applicant has provided a good reason for his serious delay.      

16.As for the merits, if any, of his intended application, as noted above the Applicant’s proposed grounds or complaints are all just some vague and bare assertions without any details or particulars or elaborations as to how they would apply to his case, or in what way would they be relevant to his claim which on the factual basis of his own case at the highest was just a private business dispute with his uncle without any official involvement that I fail to see how extra-judicial killings would be relevant to his case or how his claim would engage the BOR 2 ground in its limited scope, or in what way was the Director’s decision unfair or unreasonable. Nor was he able to do so at the hearing of his application. As such I do not find any of his grounds reasonably arguable for his intended challenge.   

17.Having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim.

18.In the premises, as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time, and accordingly dismiss his leave application.

Dated the 1^st day of June 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