Biplob S M Alias Biplobe Alias Md Rajon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 68/2023

[2023] HKCFI 1241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 68 of 2023

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 To:

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

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 17 January 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 20 December 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 April 2018 (the “2018 Notice”).

2.The leave application was made three years and 28 days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it is almost two years and ten months out of time. Leave to file the leave application out of time is required. In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time:

(1)  length of and explanation for the delay;

(2)  merits of the substantive application;

(3)  prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and

(4)  whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

3.Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.

4.The Applicant’s explanation for the delay is his lack of funds to pay the filing fees. He said it was only until recently that he was able to obtain $2,000 from his family to pay the fees. This is a convenience excuse which is unverified and easy to make. He is apparently a man of means and has access to resources as demonstrated by his financial ability to travel at least three times between June 1999 and January 2006 paying in addition to his heavy travelling and living expenses, exorbitant fees for his illegal passages and illegal use of passports belonging to another. The Court did not find his explanation credible. The delay in this case, which is unexplained, is so substantial that leave may be refused on this ground alone. But, lest any matters of significance might have gone amiss, the Court proceeded to assess the prospect of success in the proposed judicial review.

5.The Applicant is a Bangladeshi national, now aged 51. He first arrived in Hong Kong as a visitor under the identity of “Biplobe” on 12 June 1999. He was arrested by the police on 16 March 2000 for overstaying and sentenced to two months’ imprisonment suspended for two years on 25 March 2000. He was repatriated to Bangladesh on 5 April 2000.

6.He entered Hong Kong again on 10 February 2002 as a visitor, under the identity of “Md Rajon”, which he claimed to be his true identity. On 4 September 2004, he was arrested by the police for overstaying. He was subsequently convicted of overstaying and making a false representation to an immigration officer and sentenced to eleven months’ imprisonment on 11 September 2004. He was repatriated to Bangladesh on 18 May 2005.

7.On this last occasion, the Applicant entered Hong Kong as visitor on 11 January 2006 under the identity of “Biplob S M”, which he again claimed to be his true identity. He was arrested by the police on 14 August 2006 and was convicted of overstaying and two counts of making a false representation to an immigration officer on 13 September 2006 and sentenced to four months’ imprisonment.

8.He then raised a torture claim under the Convention Against Torture and Other Cruel or Degrading Treatment or Punishment by written representation dated 12 September 2006 (“CAT Claim”), which was rejected by the Director’s Notice of Decision dated 20 July 2012 (the “2012 Notice”). He appealed against that decision, but his appeal was dismissed by the Adjudicator (Torture Petitions) on 27 August 2012. In the same year, he was arrested by the police for possession of dangerous drugs. He was convicted and sentenced to four months’ imprisonment.

9.Upon discharged from prison, he raised a non-refoulement claim by way of written representation dated 27 April 2013. With the introduction of the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds other than the Torture Risk ground which had been considered under his CAT Claim, namely: BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5]. His claim was rejected by the Director’s 2018 Notice. His appeal was dismissed by the Board’s Decision dated 20 December 2019.

10.On 13 May 2020, the Applicant made a subsequent claim for non-refoulement protection to the Director. His subsequent claim was refused by the Director’s Notice of Decision dated 17 November 2020 (the “2020 Notice). The Applicant has not included the 2020 Notice in his leave application. At the hearing, he confirmed that he does not intend to seek a review of the 2020 Notice. This leave application is solely related to the Board’s Decision dated 20 December 2019.

The Applicant’s case

11.The Applicant’s claim is based on his fear of being harmed or killed:- (i) by his uncle for failing to repay a debt owed to him; and (ii) by members of the Awami League (“AL”) for being a member of the Bangladesh Freedom Party (“BFP”).

12.The Applicant alleged that he was offered a loan by his uncle to set him up in his business, if he agreed to marry his daughter. His uncle is a wealthy businessman and had connections with thugs, gangsters and the police. He took up the offer and obtained a loan of 560,000 taka in or round February 1998. However, he married a Filipino in Hong Kong in 1999 and had a daughter born in 2000. His wife and child are now living in the Philippines. He had another daughter born in Hong Kong in 2018 with his girlfriend.

13.In mid-2000, he met his uncle and two of his men in the street. His uncle demanded repayment and threatened to kill him if he did not pay. He claimed that between 2002 and 2004, he operated his own stock trading business (As his immigration record shows, he was actually in Hong Kong from 10 February 2002 until he was removed on 18 May 2005). The Applicant said he used the loan for trading in stocks in the black market to save on commission. Hence, he had no record of his trading activities. Due to a crash in the stock market, he suffered loss and was unable to repay his uncle. He also received threatening phone calls from his uncle while he was in Hong Kong. After changing his telephone number, he has not received any such calls.

14.He did not report this matter to police as he had not marry his uncle’s daughter and was in fear of his uncle’s position. He believed he could not rely on police protection as the police were corrupted and he had no money to bribe them. Being an active member in the BFP, the Applicant said he was also fearful of his uncle as his uncle belonged to the AL which target the BFP. He feared that the AL would harm him for political vengeance.

The finding of the Board

15.The Board scheduled an oral hearing on 26 July 2019. The Applicant did not turn up and did not respond to the Board’s letter requesting explanation for his absence. Thus, the Board assessed his claim on the basis of the information he had provided to the Immigration Department, including the Non-refoulement Claim Form and record of screening interview.

16.The Board assessed the Applicant’s claim on the basis of the factual case as he asserted. On the Applicant’s own evidence, he had never been tortured or ill-treated by his uncle or disturbed by thugs, gangsters, or the police while he was in Bangladesh. He last received a threatening call from his uncle’s son while he was in Hong Kong in early 2012. The Board considered that a good indication that he would not come to any harm on his return to his country despite his failure to repay his uncle after a lapse of 21 years.

17.The Applicant had also not encountered any problem from the AL. The Board considered his risk of harm from AL far-fetched since he has not been politically active for over 20 years. It assessed his risk of harm in Bangladesh to be extremely low. Hence, it found the Applicant failed to establish his entitlement for non-refoulement protection under BOR 3 Risk ground. The Board rejected his claim under Persecution Risk ground primarily because his alleged risk arose from a monetary dispute and not from a reason protected by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”). In respect of BOR 2 Risk ground, the Board was not persuaded that the Applicant would face a real risk of his right to life being violated should he is returned to Bangladesh.

18.On the basis of credible country of origin information, the Board was also satisfied that adequate state protection is available to prevent the alleged risks; and that he could avoid the risk by internal relocation.

19.For the above reasons, the Board found the Applicant had failed to establish his fear to be well-founded, genuine or real as to entitle him to protection under any of the three remaining applicable grounds under the USM. It therefore dismissed his appeal against the Director’s decision in the 2018 Notice.

Legal principles applicable to judicial review

20.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

21.The Applicant did not advance any grounds for judicial review in his Form 86. In his supporting affirmation, he advanced the following four grounds:

(1)  The Board erred in not taking into account his difficulties in providing corroborating documents;

(2)  The Decision is irrational in that the Board failed to take into account that it is impossible for him to avail himself of state protection in Bangladesh by reason of police corruption;

(3)  The Board failed to apply the high standard of fairness in determining his claim in that it failed to put his fundamental human right into consideration before rejecting his claim;

(4)  He will rely on Articles 2 and 3 of the Hong Kong Bill of Rights and the decision in Ubamaka Edward Wilson and Secretary for Security and Another[7]

22.In view of the very substantial delay, the Applicant’s leave application is bound to be refused under the principle in Po Fun Chan v Winnie Cheung. The present review of the Applicant’s grounds of judicial review is carried out lest anything of substance might have gone amiss. Hence, only brief reasons will be given.

23.There is no substance in Ground (1) because the Board assessed his claim on the basis of the case as the Applicant asserted. Lack of supporting documents was not an issue. No adverse inference was drawn by the Board for his failure to provide corroborating documents.

24.Ground (2) is primarily a challenge of the Board’s finding of fact that adequate state protection is available. The Board acknowledged as asserted in Jane’s Sentinel Security Assessment, that Bangladesh is not free of corruption and political violence and that the police/people ratio is nearly three times lower than the United Nations’ recommended ratio. However, the Board also noted from the same report that the United Nations Development programme reported marked accomplishments in Bangladesh between 2009 and 2014 in establishing victim support, improving police effectiveness, professionalism, information and communication technology management. Its conclusion that adequate police protection is available is a finding fact based on credible and authoritative sources which this Court may not interfere, save for errors of law, procedural unfairness and irrationality.

25.Ground (3) is a bare assertion without particulars. In reply to the Court’s question, the Applicant confirmed that it was only his feeling that the Decision is unfair. He was unable to particularise the procedural unfairness alleged.

26.Ground (4) is primarily an un-particularised challenge of the entirety of the Board’s Decision, namely its finding in relation to BOR 2 Risk, BOR 3 Risk and Torture Risk. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the remaining three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of the case as he asserted. He could have no complaint on the Board’s approach. It was on the basis of his case that the Board found he was not entitled to protection because the alleged Persecution Risk fell outside the protection of the Convention and his alleged risk under BOR 2 and BOR 3 Risk grounds are not genuine or well-founded. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. It is utterly without fault. The proposed judicial review has no realistic prospect of success.

27.The Applicant has no reasonable explanation for the almost four and half years’ delay in applying for leave to apply for judicial review. His proposed judicial review has no realistic prospect of success. For the above reasons, extension of time for filing his application for the leave to apply for judicial review and the leave application are refused.

Dated 11^th day of May 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

Form CALL-1