Miki Samad a v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1947/2020

[2024] HKCFI 277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1947 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 absent in open court;

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

1.  Leave for the applicant to apply for Judicial Review of the Board’s Decision be granted; and

2.   The applicant must issue this originating summons within 14 days after the dates of this Order in accordance with Order 53, rule 5 of the RHC.

3.   Form CALL-1 be served on the Department of Justice for further action to be taken.

4.   Leave granted for Department of Justice to search the file.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 14 January 2019 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”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, but he failed to attend the Court on 15 November 2023 for the hearing. I shall deal with his application on paper.

3.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.

The applicant

4.The applicant is a national of Bangladesh. He came to Hong Kong as a visitor in 2005. He overstayed since 14 May 2005 and was arrested by police on 21 January 2007. He lodged a torture claim with the Director on 11 February 2007. His application was rejected. He married in Hong Kong and applied for dependent visa. However, his wife subsequently withdrew her support of his application. By way of a written signification dated 2 July 2013, the applicant lodged his non-refoulement claim on the basis that if refouled, he will be harmed or killed by his clients, the Bangladeshi Police, Rapid Action Battalion (“RAB”), the Army, Awami League (“AL”), Freedom Party (“FP”) and the underground party Purbo Bangla Communist Party (“PBCP”), collectively called (“his enemies”) because he could not return the money to his clients.

5.According to the applicant, he joined the LBCT Travel Agency as a partner in January 1992. The company was a recruitment agency. After his clients deposited certain amount of money in the company’s bank account, he would send the money to recruitment agencies overseas to arrange the working visa and the air ticket for them. He was responsible for all the financial matters of the company and dealing with clients personally. In around March 1992, his company was cheated by a Malaysian company. He did not get any service from the Malaysian company after transferring money to them. As a result, his company went bankrupt and could not refund the money, which was about 20 million Taka to his clients. There were about 120 clients involved. The clients were related to RAB, AL, FP and PBCP.

6.On around 21 December 1993, he was abducted by his clients and detained in a room. They demanded one million Taka from him. They beat him with hands, handles of pistols and rifles, cut him with a knife and kicked him. The second finger of his left hand was twisted. He had to receive medical treatment. But he did not report the matter to police. He agreed that he would sell his father’s land for repayment. After he was released, he stayed in a house rented by his friend Sohag in Mohammadpur where he had stayed for about a month for his recovery.

7.He then rented another premises where he stayed for 5 months. His father sold his land, but he refused to use the money to pay off his debts to his clients. He left for Singapore in June 1994, where he had stayed until 2001. He returned to Bangladesh since he could not find a job in Singapore. Upon his arrival at Bangladesh airport, he was kidnapped again by his enemies. They detained him in a room of a two-story building where he was beaten by around 13 people with hands, handles of knives and sticks for half an hour. They beat him again at about mid-night and he was unconscious. The next day, on the pretext of going to the washroom, he managed to escape to the flat in Mohammadpur rented by his friend Sohag. He did not report to police as his clients were connect with them.

8.He had travelled to India to find his girlfriend and daughter. He also went to Dubai for employment. Finally, he came to Hong Kong because he learned that there would be protection in Hong Kong. His friend had bribed the clearance staff in the airport. He learned that his enemies had lodged complaints against him to different parties and there had been 5 warrants issued to arrest him. Finally, he overstayed in Hong Kong since 14 May 2005. His family members in Bangladesh informed him that the AL people were demanding money from them.  In Hong Kong, he managed to join the Bangladesh Nationalist Party of the Hong Kong branch. His family members told him that his enemies are still looking for him.

9.Details of his story are in set out in paragraph 11 of the Director’s Decision dated 24 April 2018.

The Director’s Decision

10.As his torture claim had been rejected, the Director considered the applicant’s claim in relation to the following risks:

a.  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”);

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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director, having considered the evidence, was of the view that the level of risk of being harmed or killed by his enemies upon his return was assessed to be low [23]-[29] (ii) state protection would be available to him [30]-[33]; and (iii) internal relocation was a viable option [34]-[40].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. However, the applicant was out of time to file the notice of appeal. The Board found that the Director’s Decision was duly served on the applicant through his duty lawyer on 26 April 2018 and the 14-day period for filing his notice of appeal ended at the close of 10 May 2018, Thursday [21]. The Board only received his notice of appeal on 12 June 2018. Therefore, there is a delay of about one month.

13.Having considered the applicant’s explanation, the Board came to the conclusion that the applicant have not provided a satisfactory explanation to account for his failure to file the notice of appeal within time [33]. It further found that it was neither unfair nor unjust to refuse his application to lodge the notice of appeal outside the 14-day prescribed period [34]; and that there were no other matters known to the Board or revealed by the factual basis of the applicant’s claim, which might amount to special circumstances and which might make it unjust not to allow the late filing of the notice of appeal [35].

14.On those bases, the Board refused to extend time for the applicant to file his notice of appeal.

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

15.The applicant has filed Form 86 dated 28 September 2020 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant said he is not well-educated and he does not have legal advice. He further said that the Board had not considered his case properly.

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 Decision should be examined with rigorous examination and anxious scrutiny.

19.The question before the Court is whether the Board was correct to refuse extending time for the applicant to file his notice of appeal under the circumstances as the Board described.

20.The Court notes that section 37ZT in relation to late filing of the notice of appeal by the applicant has been amended, which was operative on 1 August 2021. The revised legislation does not required the Board to consider the merits of the applicant’s case in determining whether time should be extended. However, the revised legislation does not have any retrospective effect, which means before 1 August 2021, the law required the Board to consider the merits of the applicant’s case as the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, held,

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

21.It is apparent that the Board had not considered the merits of the applicant’s case, not least the Director’s Decision at all before it exercised its discretion not to extend time for the applicant to file his notice of appeal.

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

CONCLUSION

23.I grant leave for the applicant to apply for judicial review of the Board’s Decision. The applicant must issue his originating summons within 14 days after the date of this Order in accordance with Order 53, rule 5 of the RHC.

24.As the applicant is unrepresented, this Form CALL-1 has to be served on the Department of Justice for further action to be taken. I shall also give leave to the Department of Justice to search the file.

Dated the 30^th day of January 2024

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