NAHID MOHAMMAD v. JOHN T GLASS, ESQ., TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 1006/2017

[2019] HKCFI 2733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1006 OF 2017

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DECISION

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1.  On 28 June 2019 I dismissed the Applicant’s Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding that it was his second such application after failing to obtain leave in his earlier proceedings under HCAL 142/2017, that it was an abuse of process by him to try to re-litigate his claim again after none of the grounds raised in his previous application was found reasonably arguable, and that there was no error of law or procedural unfairness in his process before the Board or in its decision, nor was there any prospect of success in his intended application.

2.  The Applicant now by a summons issued on 8 August 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 12 June 2019, and hence he was late by about three weeks with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see ReMK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The AppealPanel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director ofImmigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346.

4.  In the Applicant’s case, a delay of three weeks cannot be regarded as insignificant, for which he claimed to have never received the decision in the mail and was only told of it by the Immigration Department when he reported on his recognizance.  The record shows that the decision was sent on the same date to his last reported address and has never been returned through undelivered post.  In the absence of any further particulars or supporting documentary evidence from the Applicant, I am not satisfied that he has provided any good or valid explanation for his delay.

5.  More importantly, nor did he in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, despite his claim to have good grounds to appeal in his supporting affirmation, and when he was invited at the hearing to elaborate on his such claim, he merely stated that it was wrong for the Director of Immigration to reject his non-refoulement claim without making sufficient enquiry as to the real situation in his home country, of which was clearly already found by the Court in his previous application as not reasonably arguable.  As such and in the absence of any error in the decision being properly identified by the Applicant, I do not see any prospect of success in his intended appeal. 

6.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.

HCAL 1006/2017

[2019] HKCFI 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1006 of 2017

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 the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The applicant is a 30-year-old national of Bangladesh who entered Hong Kong illegally on 24 September 2013 and was arrested by police on 27 September 2013.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Nitira, Ariol Bazar, Tongibari, Munshiganj, Bangladesh.  His father was a shop owner and a dedicated member of the political party Bangladesh Nationalist Party (“BNP”), and so the applicant also became a supporter of BNP and joined its student wing at school.

3.  After AL won the 2008 general elections and became the ruling party, some of its supporters in the applicant’s home village started to harass and intimidate his father demanding him to quit BNP to join their party and to pay protection money for his shop, and when his father refused to yield to their demands, he was attacked by the AL people who also destroyed his shop and burnt down his home, while the applicant also faced similar harassments and intimidations at school from members of the student wing of AL that he on 12 May 2013 decided to leave Bangladesh for his own safety and he departed for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 26 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

4.  By a Notice of Decision dated 21 March 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

5.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the AL people to the applicant upon his return to as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread across a vast territory of more than 140,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to other part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those AL people to locate him.

6.  By a Notice of Further Decision dated 9 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

7.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 1 April 2016, and for which he attended an oral hearing on 1 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  On 18 April 2017 the applicant filed his Form 86 under HCAL 142/2017 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward eight grounds mainly of procedural impropriety/unfairness and irrationality in the Board’s decision for his intended challenge.  

9.  On 25 August 2017 his application was refused by Deputy High Court Judge Woodcock upon finding none of those grounds as reasonably arguable, that there was no error of law or procedural unfairness in the Board’s decision, nor was there any realistic prospect of success in the applicant’s intended challenge.

10.  The applicant did not lodge any appeal against that decision, and instead on 4 December 2017 he filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision based on the identical eight grounds of procedural impropriety/unfairness and irrationality which he had put before Deputy Judge Woodcock in his previous application and which had all been found not reasonably arguable for his intended application.

11.  Clearly the principle of res judicata applies, and that this is an abuse of process by the applicant for trying to re-litigate his claim again.  Accordingly his application is dismissed.

Dated the 28^th day of June 2019.

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