Jahangir Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2289/2018

[2022] HKCFI 2288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2289 of 2018

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.   The extension of time for the application for Judicial Review be refused; and

2.   The application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 April 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). This application filed on 22 October 2018 is late.^[1] I shall deal with this issue below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Bangladesh.  He entered Hong Kong on 16 April 2005 as a visitor and was permitted to stay for two days.  However, he did not depart and had overstayed since 19 April 2005.  On 29 May 2007, he was arrested by the police for overstaying and taking up unapproved employment.  On 30 July 2007, he lodged a torture claim.  On 10 October 2007, he wrote to withdraw his torture claim.  As a result, he was removed to Bangladesh.  On 4 October 2009, he entered Hong Kong illegally and was arrested on 8 October 2009. 

5.Again, on 11 October 2009, he lodged a torture claim which was later withdrew on 4 January 2010.  On 26 May 2010, he was again arrested by the police for taking up unapproved employment.  On 8 July 2010, he wrote to request the reopen of his previous torture claim.  Upon the commencement of the unified screening mechanism, the applicant’s torture claim was taken as the non-refoulement claim, the basis of which was that, if refouled, he would be harmed or killed by his enemy due to a land dispute.

6.According to the applicant, his grandfather purchased their family land from their neighbor, namely, the enemy.  However, the enemy denied such purchase.  The two families had constant disputes over the land.  Before the applicant’s father passed away in 2002, he was attacked by the enemy.  The applicant claimed that he was once attacked prior to his father’s death.  After his father died, the enemy forcefully occupied the family land.  While the applicant was working in Dubai, he received phone calls of threats and encountered two incidents which he believed were orchestrated by the enemy. Upon his return to Bangladesh, from mid-2002 to end-2003, nothing eventful happened.  In the end of 2003, he was asked to the office of the Bangladesh Nationalist Party (“BNP”) and threatened by a man to withdraw his complaint from the land office about the family land.  A month later, he was attacked by BNP members with choppers and sustained injuries.  The applicant escaped to Dhaka where he was informed by his mother about the BNP members’ visit.  It led to the applicant’s first flee to Hong Kong.

7.After he lodged his first torture claim, his friend told him that the enemy was willing to settle the dispute.  Thus, he withdrew the first claim and returned to Bangladesh.  However, in 2008, he was again attacked by some unknown men who he believed were sent by the enemy. He then escaped to Hong Kong for a second time and lodged a second claim.  Nevertheless, he explained during the interview that his dispute with the enemy was not solved.  The reason for his withdrawal of the second claim was that he did not wish to live a hard life in Hong Kong.

8.In light of the fact that his dispute remained unsolved, the applicant sought to reopen his torture claim.  The details of his claim are set out at paragraph 6 of the Notice of Decision dated 11 June 2015 by the Director (the “Director’s Decision”) and paragraphs 4 to 24 of the Board’s Decision.

The Director’s Decision

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

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

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[18]; (ii) the applicant’s credibility was in doubt [19]; (iii) state protection would be available to him [20]; and (iv) internal relocation was also a viable alternative [21].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 2 September 2016, the Board conducted an oral hearing for his appeal.

12.The Board considered the applicant’s oral evidence at the hearing and his immigration records [25]-[35].  It also reminded itself with the well-established legal principles.  In assessing the credibility of the applicant, the Board found that the documents in support submitted by the applicant were questionable and his explanation that all the supporting documents were lost in a fire in 2009 was unconvincing [51]-[55].  On these premises, the Board found that the applicant’s evidence was full of inconsistencies and thus implausible [57].

13.In assessing the individual grounds, the Board noted that the land dispute was private in nature without state involvement [62]; that the alleged ill-treatments did not attain to a minimum level of severity [67]; and that the country of origin information showed that state protection and internal relocation were both viable alternatives [72]-[78].

For these reasons, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant has filed Form 86 dated 22 October 2018 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant said he considered the Board’s Decision was unreasonable in that it failed to consider all the matters raised in his claim and give adequate reasons for its Decision.

DISCUSSION

16.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.

17.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).

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

19.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.”

20.Those grounds in paragraph 15 above are only his bare assertions or opinions without any evidence in support. They are not valid reasons to challenge the Board’s Decision.

21.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.

22.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.I refuse to extend time for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 8^th day of August 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