Sarder Halal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 805/2019

[2024] HKCFI 948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 805 of 2019

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 oral submissions by the Applicant 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 the originating summons within 14 days after this Order in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 28 November 2018 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. His application shall not be later than 3 months from the date of the Board’s Decision, which is 1 March 2019. His application was filed on 22 March 2019, which is 3 weeks’ late. This issue will be dealt with below.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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, aged 44, is a national of Bangladesh. He was arrested by the police after entering Hong Kong illegally from Mainland China. The applicant made a non-refoulement claim on 15 November 2015. The non-refoulement claim was made on the basis that, if refouled, he would be harmed or even killed by the members of the Awami League (“AL”) because he was involved in fighting them when AL was not the ruling party.

5.According to the applicant, he joined the Bangladesh Nationalist Party (“BNP”) as an ordinary member in 2001. BNP was in power at that time and the applicant was involved in fighting with AL between 2001 and 2006, the then opposition party. During this period, the applicant fought physically with AL members with bare hands or bamboo sticks during political clashes. In January 2009, AL became the ruling party after winning the general election. The applicant was scared, so he relocated to Dhaka and stayed there for 2-3 months.

6.The applicant went back to his hometown in March/April 2009 after his mother told him that it was safe. However, after 2-3 days, his friend from AL told him that AL members would come to his house and beat him. He left home upon being informed and hence did not encounter the AL members. The applicant also learnt from his BNP friends that there was a false fighting case filed against him. The applicant then fled to Dhaka and stayed there for a year.

7.Upon confirming with his family and friends that the situation was safe, the applicant returned to his hometown in 2010. Yet, after 20-22 days, he was arrested by the police and was detained for one day and one night. He was then brought to Court, where he was detained for 10-15 days. The applicant was given bail after the second hearing and he went back to Dhaka. Around 3-4 months later, a fight broke out in his hometown involving political dispute. Although the applicant was not involved in the fight, his name was being put on the police case list. The applicant then decided to go abroad. He went to Qatar in 2013 and stayed there for 20 months. He then returned to Dhaka for medical treatment as he suffered tonsillitis. He recovered in 1.5 months and then worked in Dhaka for 2-3 months. He then left for China and eventually sneaked into Hong Kong. At the end of 2016, the applicant heard from the news that his BNP affiliated paternal uncle was killed by AL members, making him more scared to go back to Bangladesh.

8.The applicant had never thought of seeking assistance from police or other authorities. He also considered internal relocation within Bangladesh not viable because AL members would easily know his whereabouts.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 13 March 2018 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the AL members indicated that the applicant did not face a real and imminent risk of harm upon his return to Bangladesh [15]-[16]; (ii) state protection will be available to him upon his return [17]-[19]; (iii) internal relocation was viable [20]-[22] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [23]-[28], Persecution risk [29]-[33] or Torture risk [34]-[38].

The Board’s Decision

12.The applicant was supposed to appeal the Director’s Decision on or before 29 March 2018. However, his Notice of Appeal (“NOA”) dated 28 March 2018, was only posted on 4 April 2018, which then reached the Board on 9 April 2018. The applicant explained that the appeal was filed late because he only received the Director’s Decision from his legal representative on 23 March 2018 [13]-[14].

13.The Board considered that the delay on the part of the applicant in preparing and filing the NOA was unjustified. Even if it is accepted that he only had actual notice of the Director’s Decision on 23 March 2018, it took him 5 days to prepare the NOA and another 6 days to post the NOA. The Board therefore rejected the applicant’s appeal due to late filing and the Director’s decision was not overturned [15]-[25].

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

14.The applicant has filed Form 86 dated 22 March 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

16.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. I shall consider the merits of the applicant’s case.

17.The question before the Court is whether the Board was right not to extend time for the applicant to file his notice of appeal, in effect, dismissing his appeal without considering the merits of the case, such as the Director’s Decision.

18.In a recent case of the similar situation, the Court of Appeal in Re: Fillarosa Rhea Limbaga [2024] HKCA 95, Hon Cheung and G Lam JJA, 25 January 2024, held:

“14. …In Re Qasim Ali [2019] HKCA, Lisa Wong J in delivering the decision of the Court of Appeal held:

‘24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.’

15. We are aware that section 37ZT(2)(b) of the Ordinance has been amended in 2021 and it no longer contains the words ‘any other relevant matters of fact within the knowledge of the Board’. However, in the Board’s decision of 20 September 2018 at [7], such words were quoted verbatim meaning that the Ordinance was not amended at that time. The reasoning of Lisa Wong J in Re Qasim Ali applies. The Board did not consider the merits of the applicant’s case. …The Board should have, under section 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal albeit on paper without a hearing, regardless of the procedural breaches or the lack of explanation therefor.

16. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable.”

19.The Board’s Decision is before the revision of section 37ZT of the Ordinance, which does not have retrospective effect.

20.The applicant has a realistic prospect of success in his intended judicial review of the Board’s Decision.

CONCLUSION

21.Accordingly, I extend time for the applicant to file Form 86 and I grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant must issue the originating summons within 14 days after this Order in accordance with Order 53, rule 5 of the RHC.

Dated the 12^th day of April 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