Case Detail

HCAL 171/2017

[2019] HKCFI 2325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 171 OF 2017

___________________

BETWEEN
	Bepary Mohammad Arshed	Applicant
and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office
	Director of Immigration	Putative Interested Party

___________________

Before:

Deputy High Court Judge Woodcock in Court

Date of Hearing:	30 August 2019
Date of Decision:	4 October 2019

________________________

D E C I S I O N

________________________

1. This is an application for an extension of time to appeal against my decision of 26 January 2018 refusing this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal an interlocutory order. Pursuant to Order 53 rule 3(4), the applicant had 14 days in which to apply to the Court of Appeal. He failed to do so. He now requires and seeks leave to extend time to appeal against that order. There has been over a 17-month delay. This application is dated 5 August 2019 and is supported by an affirmation.

2. The applicant filed a Form 86, a notice of application for leave to apply for judicial review on 2 May 2017. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 25 April 2017. The adjudicator of the TCAB rejected the applicant’s non-refoulement protection claim. He found the applicant did not face a real risk of torture if he returned to Bangladesh nor did he face a BOR 3 risk, persecution risk or a torture risk. The adjudicator gave full reasons in his decision why he reached those conclusions.

3. The basis of the applicant claim was that if he were to be refouled to Bangladesh he would be harmed or even killed by the Awami League (“AL”) because he was a supporter of the Bangladesh National Party (“BNP”). The adjudicator accepted that there were hostilities between the supporters of these political parties. During the political climate in 2012, according to the Country of Origin material the adjudicator considered, it was possible that the applicant may have been caught up in violence that erupted during political rallies. However, he found the applicant was just a supporter and nobody of any rank or importance in the party, therefore, highly unlikely to be an actual target if he returned. He also considered internal relocation and found that the applicant could reasonably relocate within Bangladesh without undue hardship.

4. The applicant entered Hong Kong illegally on 8 November 2013 and was arrested on the same day. I have set out the background the applicant’s claim in my decision to refuse leave. In his affirmation to support this application, the applicant said he did not receive my order of 26 January 2018 “on time”. However, he does not state when he received my order. Instead of filing a notice of appeal or applying for an extension of time appeal my order, the applicant instead filed another Form 86, he applied for leave to apply for judicial review again.

5. In HCAL 44/2018, a decision of Deputy High Court Judge Bruno Chan dated 26 July 2019, it is confirmed that this applicant filed a 2^nd application for leave to apply for judicial review before my decision dated 26 January 2018. He told the judge in those proceedings that he duplicated his application because he thought he would have a better chance of success. He did not wait for my decision before attempting to relitigate his case with a 2^nd application which is a clear abuse of the court process resulting in much judicial and public resources being wasted in processing his duplicate applications.

6. He has explained that his friends advised him to relitigate and only after the decision in HCAL 44/2018 did he seek legal advice and understand the proper process was to appeal my decision. During this application he submitted that he did not know he should appeal within 14 days of my decision. This is at odds with his decision to duplicate the leave to apply for judicial review before my decision was made known to him.

7. The delay in filing a notice of appeal are substantial, 17 months. His explanation that he was unaware of the law and time limits imposed to appeal is no excuse, ignorance of the law is no excuse.

8. In any event, I find there is no merit nor any real prospect of success in the intended appeal. It is not discourse duty to reconsider an applicant’s claim but to consider whether the adjudicator of the TCAB made an error of law or whether there is evidence of procedural unfairness or a failure to adhere to a high standard of fairness. The applicant’s only ground is that the problems at home still existed.

9. Having considered the length of delay and the lack of merit in this application, it would not be in the interests of justice to grant an extension of time. The applicant’s summons dated 5 August 2019 is dismissed.

	(Amanda Woodcock)
	Deputy High Court Judge

The applicant appeared in person.

HCAL171/2017
[2018] HKCFI 100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 171 of 2017

BETWEEN

	Bepary Mohammad Arshed	Applicant
	and
	Gerard Paul MUTTRIE, ESQ.	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1. The applicant is a Bangladeshi national who claimed to have entered Hong Kong illegally on 8 November 2013 only to be arrested on the same day. He lodged a torture claim on 11 November 2013 but upon the commencement of the unified screening mechanism on 3 March 2014 his claim was taken to be a non-refoulement protection claim. That claim was rejected by the Director of Immigration (“the Director”) on 30 December 2015 and 1 November 2016. The applicant lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 25 April 2017.

2. The applicant filed a notice of application for leave to apply for judicial review on 2 May 2017 and requested an oral hearing which was set down on 15 September 2017. Since the applicant had applied for legal aid in a timely manner but his application had not yet been decided before the hearing date, the application was adjourned to 14 November 2017. On that date, the applicant was in person because his application for legal aid had been refused.

3. The basis of the applicant’s claim was that if he were to be refouled to Bangladesh he would be harmed or even killed by the Awami League (“AL”) because he was a supporter of the Bangladesh National Party (“BNP”). Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in full in their decisions therefore, I only intend to summarise it here. The applicant was born in 1982, had eight years of education, is married with a child and has his own retail phone shop business.

4. Like his family, he was a keen BNP supporter and attended meetings and rallies. In 2012 he was attacked twice during BNP rallies by AL supporters. In the first one, a bomb was thrown which injured many BNP supporters and the applicant suffered a ruptured eardrum which required surgery. In the second incident, two months later, on 1 December, he was hit over the head during a rally and his head wound required stitches. The first incident was reported to the police but the police refused to act; even suggesting may be it was the BNP who set off the bomb. After the second incident, some AL supporters reported the BNP supporters to the police suggesting they attacked them. They named 60 BNP workers and leaders.

5. The applicant worried he was one of those named; the local BNP president told him to make himself scarce and unavailable. The applicant then left home for Dhaka over an hour away and lived there for about 11 months peacefully without harassment or trouble before deciding to go overseas to save his own life. A travel agent suggested he travel to Hong Kong. He travelled to China in November 2013 before entering Hong Kong on foot.

6. The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);
(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);
(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and
(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7. The adjudicator arranged an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles relevant to the four applicable grounds. He sets out the burden and standard of proof. The adjudicator then considered the applicant’s credibility, the evidence he gave during the hearing as well as in his previous statements, the Country of Origin information he found relevant as well is that referred to by the Director.

8. The adjudicator accepted that it was well-known that violence did break out from time to time between AL and BNP supporters in Bangladesh. This meant the applicant’s story of being hurt in two clashes was plausible enough. During the political climate in 2012, according to the Country of Origin material it was possible. However, the applicant was just a supporter and nobody of any rank and importance in the party so unlikely to be an actual target.

9. The applicant’s evidence did not suggest that anyone from the AL was particularly out to hurt him personally or target him. There was no evidence that he was one of those named by AL supporters to the police. He admitted he did not know if he was listed by the AL supporters. Moreover, the applicant went to Dhaka and lived there peacefully for 11 months, applied for a passport without drawing the attention of anyone from the government or that party. He then left the country without incident which shows no one from the authorities were after him. There was nothing to suggest they would be after him if he returned.

10. The adjudicator made a finding there was no evidence to suggest that anyone in the AL was personally after the applicant. There was no substantial risk or real risk or chance he would suffer harm from either the authorities or the AL in his area or, if there was such a risk, the adjudicator made a finding internal relocation was a viable option.

11. As far as the torture risk was concerned, the adjudicator saw no evidence there was a real chance that the authorities or the AL would target the applicant personally and inflict serious, severe pain and suffering on him if he returned. The adjudicator accepted that if the AL did go after him personally he may not be able to access State protection but he saw no real risk of this occurring. Therefore, the torture risk claim failed.

12. As far as the BOR 3 risk was concerned, the adjudicator saw no substantial risk that the applicant would be subjected to ill-treatment reaching a minimum level of severity; the BOR 3 risk claim failed. He also found no risk that the authorities or the AL would arbitrarily deprive the applicant of his right to live; the BOR 2 risk claim failed.

13. The applicant claimed himself unwilling to avail himself of the protection of his own country because he feared persecution by the AL. However, the adjudicator found no evidence to show his fear, if he had one, was well-founded. There was insufficient evidence to suggest that the applicant a mere supporter or rank and file supporter was being targeted for persecution by the political party. The persecution risk claim failed. The adjudicator confirmed the decision of the Director.

14. The adjudicator did consider internal relocation. In persecution cases, if a person can avoid the feared persecution by relocating within his country to a place where he would have no well-founded fear of persecution and where the protection of his country would be available to him and where he could live reasonably and without undue hardship; he cannot then claim protection outside of his own country. The adjudicator considered the applicant’s age, health and work experience as well as the geographical size and population of Bangladesh before concluding that he could relocate within Bangladesh. After all he lived in Dhaka for 11 months without incident. Even though the AL are everywhere, there is nothing to suggest that anyone, if anyone at all, other than local AL supporters from his home area had any interest in him.

Leave to apply for judicial review

15. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16. There are eight grounds in this affirmation and most contain no particulars. Those include grounds 5, 6, 7 and 8. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 6 complains of a failure to call for medical reports but it was never part of the applicant’s case which made such psychological or psychiatric evaluations necessary. These grounds have no merits.

17. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator very fairly considered relevant and recent material that supported the applicant’s concerns and made a finding there was not sufficient state protection in the applicant’s local area if there was a real risk to him if refouled. These grounds are not arguable.

18. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to him. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

19. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is clearly mistaken because the Director rejected it on 1 November 2016 and the appeal hearing date was 1 December 2016.

20. There is complaint the applicant answered all the questions honestly and is aggravated that his credibility was found questionable. This submission makes no sense because this adjudicator found this applicant was probably a witness of truth. He did not find his credibility questionable.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 26^th day of January 2018.

	(Alan Ngan)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);	Sent to the Applicant on 26/1/2018 Bepary Mohammad Arshed Applicant’s ref. no: Nil.	Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26/1/2018 Gerard Paul MUTTRIE, ESQ. Putative Respondent’s ref. no.: USM 2928/16/1/51/B381 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1567/15 (formerly RBCZ 851/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).

Form CALL-1

BEPARY MOHAMMAD ARSHED v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

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