Case Document

100%Judiciary

HCAL 1095/2019

[2022] HKCFI 2216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1095 of 2019

BETWEEN
	Zabar Shiekh	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

cconsideration of documents only; or

consideration of documents and Applicant being absent in open court;

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

1. Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and

2. The application for leave to apply 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 Decision dated 25 January 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”), Notice of Decision issued by the Director of Immigration (“the Director’s Decision”) and letters from the Hospital Authority (“the letter”). The Director’s Decision has been dealt with by the Board’s Decision and is therefore not amenable to judicial review[1]. The letter is simply not amenable to judicial review. They are dismissed. Since the deadline for the applicant to file his notice of appeal is within 3 months after the Board’s Decision, this application filed on 24 April 2019 is seriously late. 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, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

3.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him.

4.However, due to COVID-19 pandemic outbreak, the government discouraged social gathering and the court had to suspend hearings for a period of time. The court sent a letter to the applicant and invited him to make written submissions in order to dispense with hearing in court. The letter further said that if he takes the view that it is not possible to make written submissions in place of oral hearing, he should so inform the court, stating his reasons why this is the case and if he does not respond to the letter within 7 days, the court will proceed to consider his application on paper. The written decision will be sent to the applicant in due course.

5.Under Order 53 rule 3(3) of the RHC, it provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable. Under Order 1B rule 1(l), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to his application. I therefore proceed to consider his application on paper.

The applicant

6.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 27 February 2007 and was arrested by the police for being an illegal immigrant on 25 September 2007. On 20 May 2008, he lodged a torture claim. Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by (i) Hasina’s relatives; and (ii) members of the Awami League (“AL”).

7.According to the applicant, Hasina belonged to an influential family which was connected to the AL. One day in 1992, he was forced by Hasina’s cousins and went to their house where they framed him for raping Hasina and demanded him to marry her. The applicant had no choice but signed the marriage certificate. Subsequently, the applicant complained the forced marriage to the village committee. However, one of the committee members, Kawsar Talukdar was present at their wedding. He was furious at the applicant’s complaint and threatened to remove the family from the village. The applicant then escaped to another village in Dhaka. Nothing eventful happened for two years.

8.In 1994, when he returned to his home village, he was arrested by the police for refusing to honor the marriage. Thereafter, Hasina’s relatives demanded the applicant’s father to register some lands under Hasina’s name as compensation. Met with the refusal, they complained to the Gopalgonj Court. The applicant was detained and claimed to be bullied by the cellmates. However, after he was bailed, he was again reported by Hasina to the court for criminal intimidation. Despite eventually reaching an agreement with Hasina’s father, the applicant was still threatened by Hasina’s relatives as they did not receive any money from the settlement.

9.The applicant moved to Dhaka again but he was informed by his elder brother that Hasina’s relatives reopened the cases against him and an arrest warrant was issued against him. Although the arrest warrant was dismissed after the applicant’s clarifications, Hasina’s relatives were furious and threatened the applicant’s family for his whereabouts.

10.In addition, the applicant claimed to assist the Bangladesh Nationalist Party (“BNP”) in the election against the AL. In 2004, an AL leader, Ahsan Ullah Master (“Ahsan”) was murdered by someone from the BNP. The applicant was confronted twice by the AL members as to whether he was the killer. He was also asked to join the AL. Met with the applicant’s refusal, the AL members started to threaten and harass him. In 2006, the applicant was again confronted by the AL members and this time he was assaulted. Taking the advice from his friend in the BNP to save his own life, the applicant fled to Hong Kong for protection. Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 19 August 2015 (the “Director’s First Decision”) and paragraphs 2 to 38 of the Board’s Decision.

The Director’s Decisions

11.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)   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

(4)   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”).

12.By way of the Director’s First Decision, the Director dismissed the applicant’s claim. The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[19]; (ii) state protection would be available to him [20]; and (iii) internal relocation was a viable alternative [21].

13.In a Notice of Further Decision dated 6 April 2017, the Director also dismissed his claim on BOR2 risk (the “Director’s Second Decision”) for the reason that there was no evidence to show that the applicant’s right to life would be violated upon his return.

The Board’s Decision

14.The applicant only appealed Director’s First Decision to the Board. On 23 March 2016, the Board conducted an oral hearing for his appeal.

15.Having considered all the evidence, the Board made the following findings. It considered that, when the applicant moved away from his home village, nothing eventful happened, which meant that Hasina’s cousins had no means to locate him everywhere [48]. Besides, it was a private dispute without state involvement [81]. The Board also noted that, on the applicant’s evidence, the reason that the AL members assaulted him was because of personal grudge instead of for the party’s benefit [53]. Further, if the AL members were convinced that the applicant was the murderer of Ahsan, they had ample opportunities to take revenge but they did not do so [55]. In summary, the applicant’s claim that he was pursued by the AL members because of the murder of Ahsan was illogical and implausible [56]-[66]. In any event, the Board concluded that state protection and internal relocation were both viable alternatives for the applicant [67]-[75].

16.For these reasons, the Board rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision.

Application for leave to apply for judicial review

17.The applicant filed Form 86 on 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

18.In his affirmation in support of his application, he enclosed a statement of grounds which I shall summarize below.

(1)      He was not given legal advice as his duty lawyer had advised him that there was no merit in his case.

(2)      The hearing bundle was not explained and the documents were not translated to him.

(3)      The Board’s Decision was not translated to him.

(4)      He is unable to say whether the Board had given adequate reasons for its decision.

DISCUSSION

19.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merits of the applicant’s case.

20.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

22.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.”

23.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

24.The Court of Appeal in Re Khan MD Omar [2019] HKCA 803 at §18 held:

“Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

25.The first 3 grounds under paragraph 18 therefore fail. The 4^th ground has no substance.

26.The applicant therefore has not raised any valid ground to challenge the Board’s Decision.

27.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.

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

CONCLUSION

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

Dated the 21^st day of July 2022

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 21 July 2022 Zabar Shiekh Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 21 July 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2158/15/9/11/B282 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9000995/17; QA T/C 1527/08 (Formerly RBCZ 1099/08) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Re: Moshsin Ali [2018] HKCA 549

“45. … 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. … 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.”

Cites 9 cases

Cases cited in this judgment

Re Adumekwe Rowland Ejike

Nupur Mst v. Director of Immigration