Re Moshsin Ali

CACV 54/2018

[2018] HKCA 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2018

(ON APPEAL FROM HCAL 400/2017)

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JUDGMENT

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Hon McWalters JA (giving the Judgment of the Court):

1. This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock (the “deputy judge”) dated 23 February 2018 refusing to grant him an extension of time to enable him to apply for leave to apply for judicial review of decisions made by the Director of Immigration (“the director”) and the Torture Claims Appeal Board (“the board”) arising from his non-refoulement claim.

2. This appeal was originally listed for hearing on 26 July 2018 by a two-judge court[1]. At the time that a hearing date was fixed, the court also gave a direction for the lodging of skeleton submissions with an “unless order” that if the submissions were not lodged by 28 June 2018, the hearing date would be vacated and the appeal would be processed on the materials already filed by the applicant. Notwithstanding this “unless order”, the applicant did not lodge his skeleton submission and his non-compliance with this direction is treated by the court as an abandonment of his right to an oral hearing[2]. Accordingly, the date set for the hearing of the appeal was vacated and the appeal is now dealt with on the materials already lodged.

The applicant’s background

3. The applicant is a national of Bangladesh. He first arrived in Hong Kong in January 2006 but was arrested by the police in March 2006 for overstaying. He then lodged a refugee claim with the United Nations High Commissioner for Refugees but later withdrew this claim. A removal order was made against him and he was removed from Hong Kong on 18 May 2006. He then entered Hong Kong illegally on 18 June 2006 by using a passport under a different identity. He was allowed to remain until 2 July 2006. He departed Hong Kong for Mainland China on 1 July 2006. Upon his return on 2 July 2006, he was permitted to stay until 16 July 2006 but did not depart upon the expiry of this period. Subsequently, on 17 December 2007, he was arrested by the police for overstaying and as a result of the police investigation, his true identity became known.

4. The applicant lodged his torture claim on 20 December 2007. The claim was taken to be a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014.

The applicant’s non-refoulement claim

5. The applicant claimed that he used to own a shop selling fabrics and cloth materials and that persons associated with the Awami League (“AL”), the then ruling party in Bangladesh, began extorting protection money from him. This started at the end of 1998 and continued to 2001 when the Bangladesh Nationalist Party (“BNP”) came to power. At the end of 2002, 8 – 10 BNP people came to his shop and demanded he pay 50,000 Taka as protection money within one week and threatened to beat him up and burn his shop should he refuse.

6. The applicant refused to pay and sought assistance from a Mr Hossain, the highest BNP member in that area. Mr Hossain refused to help him and told him to pay the money. He did so and continued to make payments until the end of November 2004.

7. Around the end of November 2004 he sought assistance from a minister of the BNP government. This action angered Mr Hossain, whose people threatened to kill him and vandalize his house if he did not pay the money. The applicant then fled to India and lived there until January 2006, after which he came to Hong Kong.

8. After being removed from Hong Kong to Bangladesh on 18 May 2006 the applicant’s brother told him that his problem with the BNP people had not been solved and that they were still looking for him. The applicantdecided to return to Hong Kong.

9. His non-refoulement claim is based on the fear that if he returned to Bangladesh he would be harmed, or even killed, by the persons, who were extorting money from him.

10. By a notice of decision dated 28 November 2014, the director rejected his claim. The director’s decision covered the BOR 3 risk[3], the persecution risk[4], and the torture risk[5].

11. The director noted that the applicant had not suffered any injury from the extortionists or encountered any threats after his return to Bangladesh in May 2006. The director reasoned that since the applicant’s shop had been closed, the extortionists would no longer have any interest in him. The director concluded that the low intensity and low frequency of past ill-treatment indicated a small future risk of harm, if any, to the applicant upon his return to Bangladesh.

12. The director also concluded that there was no indication that the state was involved in or was indifferent to or provided any form of encouragement to the persons who had been threatening the applicant and extorting money from him. On the basis of country of origin information the director concluded that reasonable state protection would be available to the applicant upon his return to Bangladesh and that internal relocation would be a viable alternative.

13. By a Notice of Further Decision dated 31 May 2017 the director rejected the applicant’s BOR 2 risk[6] claim.

14. The applicant appealed to the board and it held an oral hearing on 5 November 2015 before dismissing the applicant’s appeal on 15 March 2017. However, this appeal did not encompass the Further Decision of the director relating to BOR 2 risk.

15. Having heard the applicant, the board found that his evidence was unreliable and that he “lied just to achieve his aims.” The board further found that, as admitted by the applicant, the extortionists did not belong to any political party. Since the applicant had never attempted to seek assistance from any authority, there was no evidence of state acquiescence and the country of origin information demonstrated that reasonable state protection would be available to the applicant upon his return to Bangladesh. The board also took into account the fact that the applicant had never been accused, charged, interrogated, arrested, detained, or imprisoned in Bangladesh and that he could depart Bangladesh without encountering any problem, and that he had never suffered any pain or mental ill-treatment. In these circumstances, the board found that there would not be any real risk of ill-treatment if the applicant returned to Bangladesh.

The application for leave to apply for judicial review

16. The applicant filed a Notice of application for leave to apply for judicial review (form 86) on 14 July 2017 in respect of the board’s decision but in his supporting affirmation dated the same date he indicated that he was complaining about the decisions of both the director and the board and seeking relief in respect of both of them. While the form 86 contained no grounds for seeking relief, the applicant advanced the following grounds in his affirmation:

(a) procedural impropriety—both the director and the board failed to find that the applicant’s fears “materialized”;

(b) procedural impropriety—both the director and the board failed to realize the power of the ruling party; and

(c) procedural impropriety—both the director and the board failed to conduct sufficient and independent inquiry into the relevant country of origin information (“COI”).

17. An oral hearing was held on 8 November 2017. During the hearing, the deputy judge noted that the application for leave to apply for judicial review was made out of time. The applicant explained to the deputyjudge that he had petitioned against the director’s decision rejecting his claim based on BOR 2 risk, and as that petition was still pending determination he was late in filing the application for leave to apply for judicial review. The deputy judge did not accept the applicant’s explanation, saying:

“5. The applicant could give no details as to when he had lodged that appeal/petition with the TCAB except to say it was more than one month before the date of this application, this Form 86 dated 14 July. The applicant gave no details as to why that would cause him delay in filing this application on time. Ultimately, he presented no credible explanation or excuse for the delay.

6. The delay is not insignificant and there is no good reason for extending time. Delay alone is enough to dispose of this application but the merits of the substantive application after perusal of the papers are in themselves weak. Moreover, the application does not raise any questions of general public importance. The extension of time sought is an abuse of process and ought to be refused.”

18. Notwithstanding that she had refused the application for an extension of time, the deputy judge proceeded to assess the merits of the leave application but only in respect of the decision of the board. She explained why she refused to consider the director’s decision:

“26. He does in his affirmation seek to judicial review the decisions of both the Director and the adjudicator. In my view, this is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. There is no room for a judicial review of the Director’s decision. I have considered the grounds of his application against the decision of the TCAB only.”

19. The deputy judge found that the intended application for judicial review had no realistic prospect of success and gave her reasons for that conclusion at paragraph 25 of the CALL-1 form: