Amir Molla v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 350/2020

[2023] HKCFI 2503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 350 of 2020

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 present 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 leave to apply for Judicial Review be dismissed.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 8 November 2016 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). His application is late. This issue will be dealt with below.

2.The applicant did ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 28 June 2023.

The applicant

3.The applicant is a national of Bangladesh.  He was arrested by the police on 22 October 2008 for being an illegal immigrant.  He lodged a torture claim on 25 October 2008 which was expanded to a non-refoulement claim upon implementation of the Immigration Department’s unified screening mechanism.  His claim is on the basis that he would be harmed or killed by members of an underground party, namely the Purba Bangla Communist Party (“PBCP”) and the Bangladeshi police because of his illegal involvement with the PBCP.

4.In brevity, the applicant initially joined the Communist Haque Party (“CHP”) while attending school.  Subsequently, his friends attempted to persuade him to join the PBCP instead.  However, he learnt that the PBCP had used his friends as bait to get to other members of the CHP, and had executed his friends.  In fear of his life, he relocated to other parts of Bangladesh to avoid the PBCP and in around 2004, he quit the CHP as the founder of the party was killed.  In around 2005, he ultimately joined the PBCP after persuasion from their members and participated in the parties’ illegal activities.  He was subsequently arrested by the Bangladeshi police and beaten while in detention. Due to his involvement with PBCP, the police suspected he was continuously doing illegal activities and beat him on several occasions.  In fear of his safety, he made arrangements to travel to Mainland China and enter Hong Kong.Details of his claim are set out at [6] of the Notice of Decision dated 9 December 2014 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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 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”);

c.  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

d.  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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the low intensity and frequency of past ill-treatment by the PBCP is indicative there was a small future risk of harm if he was refouled to Bangladesh [12]; (ii) on his own facts, he was involved with illegal activities which led to his arrest by the Bangladeshi police, who simply acted within their duty [13]; (iii) state protection was readily available [15] – [17]; and (iv) internal relocation was a viable option [18] and [19].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  However, he failed to attend the hearing before the Board scheduled on 29 April 2016. The Board had attempted to contact the applicant by phone, but it appeared that the phone had been disconnected. The Board then made enquiry with the Director and was informed that the applicable did not attend the Immigration Department office to sign the recognizance. The Board sent notice to the applicant at the 2 available addresses requiring him to explain his absence in writing within 7 days, but the letters were returned with remark of “no such address”. In the circumstances, the Board proceeded to determine his appeal based on the available information.

8.The Board recapped the applicant’s claim [20] – [32].  Having considered the information and documents available, the Board found much of them to be vague, and based on “hearsay and speculation” [33] and [34].  Furthermore, without his oral evidence, the Board was unable to determine, even to the low standard required, the credibility of his assertions of facts in support of his claim [36].  Having failed to establish the factual matrices of his claim, the Board held his risk of serious harm, if refouled to Bangladesh, was unsubstantiated [38].  The Board therefore found the applicant had failed to establish his claim for non-refoulement protection under all applicable grounds and dismissed his appeal accordingly.

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

9.The applicant has filed Form 86 dated 9 March 2020 for leave to apply for judicial review of the Board’s Decision.

10.In the applicant’s affirmation in support of his application, the applicant said that if the decisions were made without considering the information he had submitted to the Board.

DISCUSSION

11.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 8 February 2017. The delay is more than 3 years. The applicant has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

12.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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he understood the Board’s Decision. He asked the Court to consider his case carefully and also his health condition.

14.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.”

15.I am satisfied that the Board had done its best to notify the applicant that he was absent from the hearing and he was required to give written explanation for his absence under section 15 of Schedule 1A of the Ordinance. The burden is on the applicant to keep the Director and the Board updated of his address and he must bear the consequence if he fails to do so. In the circumstances, he was deemed to have received the Board’s notice.^[1] The Board was entitled to assess his appeal on the evidence and materials before it.

16.This case is similar to Re Hidayah [2018] HKCA 595 Hon Chu JA and M Chan J, 14 September 2018, conducted by the same adjudicator where the Court of Appeal set aside the Board’s Decision for the reason that:

“… …There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. …”

17.In this case, the Board had found the following facts:

“33. It is not clear from the information provided by the Claimant in the TCF how his claimed membership with the so-called CHP is relevant to his application for non-refoulement protection and there are questions which the Claimant might have been able to clarify, had he appeared in the hearing. The information regarding his claimed activities as a member of the PBCP is vague and general in nature and much of the information is based on hearsay and speculation.

35. It is incumbent upon the Claimant to establish that there is a real chance that he will suffer the ill-treatment which he fears if he is refouled to Bangladesh and that the feared ill-treatment would amount to persecution for a convention reason.

36. I have been unable to determine the credibility of the Claimant’s assertions of fact in view of his failure to attend the hearing. In the absence of oral evidence from the Claimant, I am unable to determine, even to the low standard required, whether there is a real chance that, if he is refouled to Bangladesh, he would suffer ill-treatment as he fears or at all….”

18.It is quite clear that the Board had doubts on the applicant’s evidence on the facts of his claim that he was a member with the CHP and for this reason, he was subjected to the alleged risks. The Board also had doubt on the applicant’s activities as a member of PBCP. Where the Board had doubts on those facts as alleged by the applicant in support of his claim, the Board might attach little or even on weight to such factual evidence given by the applicant. Without such factual basis, the Board would be quite right to say that the applicant failed to establish his claim on the alleged risks.

19.I consider that the Board was entitled to make adverse finding on the applicant’s credibility of his factual evidence. Section 37ZD of the Ordinance provides, inter alia:

“37ZD. Credibility of claimant

(1) In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

(2) other behavious: production of a false document as proof of claimant’s identity; failure to produce document required by immigration officer; failure to provide information; failure to attend an interview or provided information or answer any question; failure to make a full disclosure of the material facts or document; failure to comply with the Ordinance; and

(3) any other behaviour.”

20.The applicant had failed to comply with the Ordinance by updating his address with the Director and the Board and attending the hearing before the Board. He failed to attend the Board’s hearing without any valid reason or explanation.

21.The Board had, therefore, found that there was no evidence to show that the applicant will be subjected to the risks as claimed if he returns to his country.

22.There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

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

Dated the 12^th day of October 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