Nur Nabi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 809/2019 on BabelCite. This High Court CFI judgment was delivered on 2 February 2023.
1. The applicant applies for leave to apply for judicial review of the Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”) refusing to allow the applicant’s late filing of notice of appeal/petition against the Director’s Second Decision on BOR 2 risk as described below.
Cites 8 cases
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HCAL 809/2019 [2023] HKCFI 287 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 809 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge K.W. Lung: Leave to apply for Judicial Review be refused. Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”) refusing to allow the applicant’s late filing of notice of appeal/petition against the Director’s Second Decision on BOR 2 risk as described below. 2.The applicant did request an oral hearing. He appeared before the Court on 12 December 2022. The applicant 3.The applicant is a national of Bangladesh. He entered Hong Kong illegally on 19 December 2007 and was arrested by the police for illegal remaining on 19 February 2008. On 4 March 2008, he raised a torture claim. Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and assessed on all applicable grounds. The applicant claimed that, if refouled, he would be harmed or killed by members of the Awami League (“AL”) because he was an ordinary member of the Bangladesh Nationalist Party (“BNP”) and refused to join the AL. 4.According to the applicant, he was an active member of the BNP and had been assisting the party in holding rallies and gathering votes. In his village, surrounding his house were families that supported the AL. Whenever the applicant had gatherings at his house, there would be AL members acting as informants and passing information to the AL. In 2006, the BNP was still the ruling party. However, the applicant claimed to be approached several times by the AL who threatened and demanded him to join the AL. The applicant refused. His conflict with AL aggravated in 2007 when the AL members attempted to assault him. The applicant escaped. He went to his aunt’s place in another village. A few days later, he returned home and was informed by his mother that the AL members had been looking for him and they also searched his house and pushed his mother. They also threatened to kill the applicant and to take his land. Out of fear, the applicant fled to Hong Kong for protection. While he was in Hong Kong, he contacted his wife in 2012 and was informed that his mother had a stroke and his brother had gone missing due to the pressure imposed by the AL. As the AL was in power, the applicant decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 10 of the Notice of Decision dated 2 February 2015 by the Director (the “Director’s First Decision”). The Director’s Decisions 5.The Director considered the applicant’s claim in relation to the following risks:
6.The Director invited the applicant to attend the screening interviews. However, he failed to attend in the scheduled interviews and claimed to suffer from illness. After considering the questionnaires submitted by the applicant, and the reasonable opportunities offered to the applicant, the Director decided to make assessment of his claim based on the available information [11]. 7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim as the level of risk of harm was unlikely to be materialized. In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [17]; (ii) state protection would be available to him [18]-[19]; and (iii) internal relocation was a viable option [20]-[24]. 8.For reasons set out in the Notice of Further Decision dated 21 April 2017, the Director also found that the applicant’s right to life would not be violated and dismissed his claim on BOR2 risk (the “Director’s Second Decision”). The Board’s Decisions 9.The applicant first appealed the Director’s First Decision to the Board. The oral hearing for his appeal was held on 4 July 2016 and 18 July 2016 respectively, during which the applicant testified [18]. 10.The Board first rejected his complaint against his legal representative and also his complaint of not attending the screening interviews before the Director [19]-[20]. It also identified the discrepancies in his evidence, such as the length of his stay in China, him being a target of the AL despite he claimed to maintain a low political profile, and the fact that the claimed land should be distributed among his siblings, which defeated his claim that the AL members wanted to forcibly occupy his land [22]-[24]. Further, the Board also noted that the applicant did not seek protection at the earliest opportunities which indicated that he was not genuine in seeking protection [25]-[26]. 11.In addition, after considering the country of origin information, the Board found that state protection would be available to him [29]-[31]. In assessing the individual grounds, the Board found that the applicant was never harmed by the alleged enemies, that the dispute was private in nature without state involvement, and that his evidence on a case filed against him was based on hearsay information [31]. Meanwhile, internal relocation was also a viable alternative [37]-[40]. 12.For these reasons, in its decision dated 27 February 2017, the Board rejected the applicant’s claim on Torture risk, BOR3 risk and Persecution risk, and dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”). The applicant did not make any application for judicial review of the Board’s First Decision. 13.On 15 May 2017, the applicant sought to appeal the Director’s Second Decision. He was 7 days late [7]. Thus, the Board proceeded to determine whether to allow his late filing of notice of appeal/petition. 14.The Board considered the applicant’s explanation. It rejected his submission that he did not received the Director’s Second Decision as it was a bare assertion without any proof. Since there was no circumstance that justified his delay and warranted the exercise of discretion to allow his late filing, by way of the Board’s Second Decision, the Board dismissed the applicant’s application for late filing. Application for leave to apply for judicial review of the Board’s Second Decision 15.The applicant has filed Form 86 dated 25 March 2019 for leave to apply for judicial review of the Board’s Second Decision. 16.In his affirmation and a statement attached to Form 86 in support of his application, the applicant has raised the grounds below.
DISCUSSION 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 Second Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he understands the Board’s First Decision and he is satisfied with the hearing before the Board, which is fair. However, he said that he still has problem in his country. If his party wins in the election, he will return to his country. 19.The question before the Court is whether the Board’s Second Decision complies with the requirements of the administrative law. 20.I note that the Board did not further assess the merit of the applicant’s case when it refused to extend time for him to file his notice of appeal, contrary to the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019. However, the merits of his case had been considered by the Board in his appeal against the Director’s First Decision in respect of the Torture risk, the BOR 3 risk and the Persecution risk. The Board had rejected his appeal against the Director’s First Decision. The applicant has not applied for leave for judicial review of the Board’s First Decision, which is therefore final. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:
21.The grounds in paragraph 16 are only his bare assertions or opinions without any evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
22.The reasons given in court are not valid to challenge the Board’s Second Decision. 23.The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational. 24.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review. CONCLUSION 25.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application. Dated the 2nd day of February 2023.
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
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Cases cited in this judgment