BHUIYAN MOHAMMAD MOMINUL HOQUE v. DIRECTOR OF IMMIGRATION

HCAL 77/2018 and
HCAL 919/2018
(Consolidated)

[2019] HKCFI 1690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 77 of 2018

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 919 of 2018

(Consolidated)

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;

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 11 January 2018 refused; and

2.  both of Applicant’s applications for leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  The applicant is a 28-year-old national of Bangladesh who entered Hong Kong illegally on 7 March 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain supporters of the student wing of rival political party Awami League (“AL”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Bhulkara, Kankapait, Chauddagram, Comilla, Bangladesh.  When he was in college he became a supporter of Bangladesh Nationalist Party (“BNP”) and jointed its student wing Chatra Dal.

3.  As rival AL also had its student wing Chatra League in his college, the applicant was frequently invited by its members and supporters to join their party, and one day in March 2012 when a group of Chatra League members approached him with the invitation again, and when the applicant refused, they became angry and started to push and shove him around, and when the applicant started to run away from them, he heard a gunshot from behind but he was not hit and managed to flee home unhurt.

4.  As the applicant was concerned for his safety, and on his parents’ advice he left home to take shelter at his friend’s place in Chittagong where he stayed for three months without incidents, but later when he heard that the same group of Chatra League people were still looking for him everywhere in his home village with death threats, he therefore left Chittagong for Dhaka for two weeks before moving to another friend’s place in Comilla where he stayed for six months without incidents, but when he started to receive threatening phone calls from the same Chatra League people, he felt it was no longer safe to remain in Bangladesh, and so on 10 January 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest he raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 23 August 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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”).

6.  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 those Chatra League people to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention on their part to harm or kill him as there was no reason why he was specifically targeted by them, that in the absence of any 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 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied and highly educated young man to move to other part of Bangladesh away from his home district in large cities such as Dhaka or Chittagong where he had stayed before without incidents and where it would be difficult if not impossible for those Chatra League people to locate him.

7.  By a Notice of Further Decision dated 18 September 2017 the Director again rejected the applicant’s claim upon receiving and considering his further submissions 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”).

8.  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 5 September 2016, and for which he attended an oral hearing on 3 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 11 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found the applicant’s account of events in Bangladesh prior to his departure in particular his additional assertion of false charges being made against him for the death of three Chatra League members and for which he was subsequently convicted as conflicting and incredible and without a shred of documentary evidence in support, and that state protection would be available to him from any threats from the Chatra League people, as well as internal relocation alternatives for him to move safely to other parts of Bangladesh such as Chittagong where he had stayed before without incidents that his non-refoulement claim failed on all applicable grounds.  

10.  On 16 January 2018 the applicant filed his Form 86 under HCAL 77/2018 for leave to apply for judicial review of the Director’s decision, and in his supporting affirmation of the same date he merely stated that the decision was unreasonable in that the Director failed to consider all the matters raised in his claim and/or failed to give adequate reasons for his decision.

11.  However, before his application was dealt with by the Court, the applicant on 24 May 2018 filed another Form 86 under HCAL 919/2018, and this time it was for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement;

(2)  procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  procedural unfairness in that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness;

(4)  procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)  procedural unfairness in that the hearing bundle for his appeal was given to him late with no proper translation for the majority of documents which were in English; and

(6)  that the Board had significantly relied on source of news not officially recognized or was simply hearsay or outdated resulting in groundless speculations that it would be safe for him to return to his country of origin.

12.  At the hearing of his leave applications, I decided to consolidate both his leave applications for the Court’s disposal, and as in the case of Re Moshsin Ali [2018] HKCA 549, the Court of Appeal held that the decision of the Director is not susceptible to judicial review once a non-refoulement claimant has pursued an appeal to the Board. Since the applicant had already appealed to the Board against the Director’s decision, I shall only focus on the Board’s decision in his application for leave to apply for judicial review.

13.  By then however the applicant was already out of time with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

14.  In the applicant’s case the three-month period within which he was to file his Form 86 expired on 11 April 2018, and hence he was late by almost one and a half months, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.  A delay of almost one and a half months cannot be regarded as insignificant, for which the applicant explained at the hearing that he was sick at that time and was resting at home but did not give any further particulars or documentary evidence.  As such I do not accept that he has provided any good reason for his delay.

16.  As for the merits of his intended application, the applicant’s proposed grounds to challenge the Board’s decision are however mostly just broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or how was its decision unreasonable or irrational in the public law sense, or which source of news or COI was not officially recognized or was hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

17.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

18.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had all earlier being made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

19.  Furthermore, the Board rejected his claim of the false charges being laid against him for the death of three Chatra League members and his subsequent conviction on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 16–18 of its decision and with the benefit of having heard him in evidence and in his answers to questions raised of that claim during his oral hearing, that in the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

20.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.  In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the applicant’s claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss both of his leave applications.

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