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MADBAR SOHEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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[2019] HKCFI 1120-EN-2019-04-26

MADBAR SOHEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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HCAL 797/2017

[2019] HKCFI 1120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 797 OF 2017

___________________

BETWEEN
	MADBAR SOHEL	Applicant
and
	TORTURE CLAIMS APPEAL BOARD /	Putative Respondent
	NON-REFOULEMENT CLAIMS
	PETITION OFFICE
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

___________________

Before:

Hon Campbell Moffat J in Chambers

Date of Hearing:	26 April 2019
Date of Decision:	26 April 2019

___________________

D E C I S I O N

___________________

Introduction

1. This is an application filed on 15 March 2019, to appeal my decision of 24 August 2018 refusing leave to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision. He did not do so. He now requires leave to extend time to appeal against that order. The applicant appeared in person with the assistance of a Bengali interpreter.

Procedural background

2. The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. He entered Hong Kong illegally on 15 December 2013 and was arrested by the police on the same day. He submitted a non‑refoulement claim form on 26 January 2016 and was interviewed by the Director of Immigration (“the Director”) on 6 April 2016. The Director dismissed his claim by Notice of Decision on 19 May 2016 and by Notice of Further Decision on 3 March 2017. He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Tam Kwok‑wah, Jerry, heard him on 3 April 2017. The adjudicator refused his appeal on 17 October 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 October 2017 and did not request an oral hearing. The matter was therefore considered on the papers. His application for leave to apply for judicial review was refused on 24 August 2018. He had 14 days from that date to appeal that decision, which would have expired on 7 September 2018. By way of summons filed on 15 March 2019, he now seeks leave to appeal out of time. He is significantly out of time.

4. Under Order 59, rule 21(1)(g), an applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review. The applicant may appeal as of right. However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order has to observe the time limits for appeal under Order 59, rule 2B which allows 14 days. Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59 rule 15.

5. In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay. The applicant’s summons and affirmation in support has been professionally prepared but does not provide any explanation for why he is out of time, nor does it allude to how he came to be made aware of the decision of this court. It does state that he was detained at the Castle Peak Bay Immigration Centre (“CIC”) but does not explain the circumstances of that detention.

6. In answer to questions from the court, the applicant explained that on 24 August 2018, he was serving a period of imprisonment of 22 months for taking up employment without the permission of the Director and that is why he was not notified of the decision of this court. That sentence appears to be a longer than normal sentence but the applicant denied being charged with any other offences at the same time and maintains that he has no other criminal record. The current summons indicates that the applicant’s address was CIC as he had been detained in CIC since his release from prison on 9 February 2019. In court today, he has given his address as Flat 8, 4/F, On Fook Building, 48‑72 Tai Tong Road, Yuen Long. This is the same address given on the Form 86 in October 2017. The applicant says that he had lived at that address with his wife in October 2017, but that he was arrested shortly after he submitted his Form 86 and she moved to another flat elsewhere and therefore she did not receive the Form CALL‑1 or Order dated 24 August 2018. However, he says, quite by coincidence, that they moved back to exactly the same room in the same building as he had previously been renting just two weeks ago. I do not accept that. I do not believe the applicant has been full and frank with the court. When asked when, on his account, he finally obtained a copy of the Form CALL‑1 and Order, he was evasive to the point that he suggested he had managed to file the summons and affirmation in support of his request for an extension of time without ever having seen the Form CALL‑1 and Order. When it was explained to him that could not possibly be the case as he had made specific complaints about the decision of this court, he then said a friend called Amandeep had helped him prepare what can only be described as a professional summons and affirmation. He still failed to specify how he came to be in possession of a copy of the Form CALL‑1 and Order on his own account.

7. In his affirmation in support of this application for an extension of time to appeal, the applicant complains that the decision of this court to refuse leave to judicially review the TCAB was unfair; the applicant should have been given an opportunity to clarify the situation in his country and the court heavily relied upon the Country of Origin Information (“COI”) referred to by the Director. Further, he complains that he was unaware of the 14‑day time limit because he was not legally represented. Given the fact that the applicant told the court he had not seen the Form CALL‑1, the court asked him to make good his complaint in respect of the COI. He could not. Indeed, he accepted that the Director had considered the political situation in his country and the conflict as between the Awami League and the Bangladesh Nationalist Party and that this was the main issue he relied upon. He did not allude to any other COI which should have been relied upon. The summons also contains a suggestion that the applicant wished to advance a new sole ground of appeal. He was asked to say what that was. He could not. He did not have one. He simply wanted his case to be looked at afresh.

Conclusion

8. The applicant has now been in Hong Kong since 2013. In that period he has communicated satisfactorily with the relevant authorities sufficient to progress his claim to judicial review and he has clearly had assistance with that. Thereafter, he appears to have done nothing to progress that application between 23 October 2017 and 15 March 2019, albeit he was in prison for part of that time and thereafter detained at CIC. He may have been given some credit for that if he had not suggested that despite being informed his leave application had failed, he had never seen the Form CALL‑1 or Order. He would not accept that the Director had informed him of his refusal of leave when he was transferred to CIC. The court does not know how he says he obtained a copy of the Form CALL‑1. The explanation he has offered to this court, as to why he did not receive the Order is not acceptable. I do not accept that his wife, heavily pregnant and about to be on her own in a strange country, moved to a different flat in order to give birth and then, quite by chance returned to exactly the same flat two weeks before this hearing. I believe he did nothing upon receipt of the Form CALL‑1 because he was detained and saw no reason to take action.

9. Notwithstanding that, I have considered his underlying application. It has no merit as explained in the initial refusal of leave. There were no grounds of review advanced for this court to consider, yet this court considered the papers carefully at that time to see if there were any grounds upon which leave could be granted. There were not.

10. This is an application for extension of time to appeal and it should only be given if there is good reason so to do. An appeal against a refusal of leave to apply for judicial review is not an occasion for the Court of Appeal to examine the decision of the TCAB afresh. An appellate court is concerned with the decision of this court when dealing with the grounds of review placed before it. The Court of Appeal will only interfere with that decision if this court has erred in law, failed to take account a relevant matter or is otherwise plainly wrong[1]. The complaint before this court as to the decision of this court to refuse leave has not been made good even in the most basic of forms. Indeed, I do not believe it is the applicant’s complaint and that it is likely someone else has made up the complaint for the purposes of this application. Although the applicant indicated there was a “new and sole” ground of appeal, he did not know what it was. Again, I suspect someone else has made that up for him. The applicant merely wishes the Court of Appeal to consider his situation afresh. That is not its function in judicial review.

11. Having considered the length of delay, the reason given for the delay, the underlying merits of his application and the basis of his appeal, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

12. The applicant’s summons filed on 15 March 2019 be dismissed.

	(A P Campbell Moffat)
	Judge of the Court of First Instance High Court

The applicant appeared in person.

[1]Nupur Mst v Director of Immigration[2018] HKCA 524

HCAL 797/2017

[2018] HKCFI 1783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 797 of 2017

BETWEEN

	Madbar Sohel	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	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 the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1. The Applicant entered Hong Kong illegally on 15 December 2013 and was arrested by the police on the same date. He was transferred to the Immigration Department on 16 December and released upon recognisance on 14 January 2014. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 17 December 2013. His NRF claim form was submitted on 26 January 2016.

2. The Applicant attended a screening interview on 6 April 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 19 May 2016 and by Notice of Further Decision (re BOR 2) on 3 March 2017. The Adjudicator of the Torture Claims Appeal Board (“the TCAB”), Mr Tam Kwok Wah, heard him on 3 April 2017. He considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 17 October 2017.

3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 October 2017 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4. The Applicant is a Bangladeshi national. He was born on 29 November 1987 in West Kuapur. He had eight years of formal education, is single, a Muslim and has worked as a machine operator. He is an active member of the Bangladesh Nationalist Party (“BNP”), which is in opposition to the Awami League (“AL”), who are currently in power. In 2011, whilst at a BNP rally, the Applicant and fellow BNP members were attacked by members of AL, who throwing bricks and stones. This attack caused injury to the Applicant’s legs which took 20 to 25 days to recover but did not require hospitalisation. The Applicant attended another public BNP meeting about five months later when members of AL attacked the group with cocktail bombs. Although the police were present, the Applicant maintains that they were siding with AL and therefore dispersed the BNP. Whilst attempting to flee, the Applicant was further assaulted but sought private medical assistance only. On this occasion the Applicant twice attempted to make a complaint to the police as he could identify one of his attackers, however, the police simply advised him to stay away from rallies of this type.

5. For a short period of time, the Applicant avoided political rallies and nothing of note occurred. In 2013 he began to become politically active once more and joined a rally in November. The Applicant was accosted on his way home by 8 to 10 AL members and was punched and kicked. He also received death threats from a local MP. As a result, the Applicant applied for and obtained a passport and left the country to go to China, from where he entered Hong Kong illegally.

The non-refoulement claim

6. Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii. 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”). Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.
iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

7. It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim. The Director and Adjudicator must then assess the level of harm the Applicant says he fears. Each ground of claim above has a relevant level of risk. It is for the Applicant to establish that he is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”. The question is whether there is a real riskor real chance of the occurrence or recurrence of the harm which he fears.

Decision and Further Decision of the Director

8. The Director analysed the Applicant’s claim on all applicable grounds. He considered a range of documentary evidence. He correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state his case and to supplement the evidence before the Director. In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner. In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 and was invited to make submissions thereon. He failed to do so.

Decision of the Adjudicator

9. The Adjudicator analysed the Applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. The applicant was unrepresented but had the benefit of a Bengali interpreter. The Adjudicator correctly set out the law and key legal principles including the burden and standard of proof. He found that the Applicant had not been specifically targeted by members of the AL; that the level of injury on any occasion was not sufficiently serious and that the reaction of the police to the unlicensed BNP rallies was in accordance with their duty and the law rather than indicative of being a partisan act.

Leave to apply for judicial review

10. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria. They gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.

Dated 24^th day of August 2018.

(Ms Queenie Mak)
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

Notesfor 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);

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)).

Sent to the Applicant on 24/8/2018

Madbar Sohel

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 24/8/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3784/16/5/202/B513

Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000424/17 (formerly RBCZ 1094/14)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

	consideration of the documents only; or
	consideration of the documents and the Applicant being present/absent in open court;