MIR MOHAMMAD DULAL MIAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1280/2018

[2019] HKCFI 2553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1280 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 March 2018 refused; and

2.  the application 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 42-year-old national of Bangladesh who entered Hong Kong illegally on 10 January 2014 and surrendered to the Immigration Department on 22 June 2016 when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by a certain member of rival political party Awami League (“AL”) for refusing to pay distortion money and/or by the police for participating in an unlawful protest.  He was subsequently released on recognizance pending the determination of his claim. 

2. The Applicant was born and raised in Village Bagai Gram, Thana Chauddagram,District Comilla, Bangladesh.  After leaving school he ran a shop in Kashinagar Bazar selling mobile phone accessories, got married and raised a family of five children.

3. In 2000 he started to support the political party Bangladesh Nationalist Party (“BNP”) regularly attended their meetings and rallies and putting up posters and banners for them during local elections.

4. One day in April 2012 a local gangster, JB who was also a member of AL, came with his men to the Applicant’s shop demanding extortion money and threatening to kill him if he refused, and when the Applicant pleaded for more time to get the money, JB warned him before he left that he would return for the money the next day.

5. The Applicant then fled to a neighbouring village to take shelter at his sister’s place for several days before returning home without having any further encounter with JB until one day in June 2012 when JB and his men came to the Applicant’s shop and started to beat him up by punching and kicking him and slashing his arms and legs with their knives,and also took things from his shop and broke its windows before they left.

6. Afterwards the Applicant was hospitalized for a week, and upon his discharge he reported the matter to the police, but when no follow-up action was taken by the police,he closed down his shop and left Bangladesh to work in Dubai as an electrician.

7. In June 2013 as one of his children became sick, he therefore returned to his home in Bangladesh.  A few months later he ran into JB and his men in the village who claimed that he still owed him the extortion money and proceeded to punch and kick him for several minutes, and before they left they warned him that they would come after him again if he still failed to pay them the extortion money.

8.  After the assault the Applicant went into hiding from JB and his men, but in November 2013 he received a call from BNP to join in their rallies and protests against the government controlled by the ruling party AL, and while he was marching with his fellow BNP supporters in District Comilla, the police arrived to disperse them and beat them with batons.  As a result, many BNP supporters were arrested but the Applicant managed to escape and hid in a neighbouring village until the following day.

9.  Upon returning home and after discussing with his family, the Applicant decided that it was no longer safe to remain in Bangladesh, and so on 12 December 2013 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 16June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 31 July 2017 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 his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

11.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his perceived fear is real and foreseeable upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from JB or his men, that there is no evidence of any real intention on the part of JB to harm or kill him as they were only after the extortion money and that after all these years it is doubtful that they would still have any adverse interest in him, that there is no reliable evidence that the police were after him given the fact that he was able to leave the country without any problem, that in the absence of any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objectiveCountry of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 156 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 adult with work experience to move to other area away from his home district in large cities such as Dhaka where it would be difficult if not impossible for JB or his men to locate him.

12.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended two oral hearings on 30 October 2017 and 20 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board found conflicts and inconsistencies in the Applicant’s evidence given in his process before the Immigration Department and before the Board that it doubted his claim of fear of harm from JB or the police upon his return to Bangladesh, which was further undermined by the serious delay with his claim which was only raised more than two years after his arrival in Hong Kong, and that in any event with reasonable internal relocation within Bangladesh that it would not be unreasonable for the Applicant as a healthy adult with work experience to relocate with his family to other areas of Bangladesh to avoid any risk of being located by JB or his men that his claim for non-refoulement protection failed on all applicable grounds.

14.  On 4 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds as summarized for his intended challenge:

 (1) that the Board erred in failing to apply high standards of fairness by not taking into account the evidence adduced by the Applicant in support of his claim and that minor discrepancies under cross-examination should not cause it to find the Applicant unreliable;

 (2) that the Board erred in approaching the matter by simply trying to see whether it could find fault with the decision of the immigration officer as shown by the general practice of the Board not to question or find fault with the decision of the Director;and

 (3) that the Board failed to consider the conditions of the Applicant’s country of origin in its assessment of the Applicant’s claim.

15.  The Applicant was by then however late 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.

16.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 28 June 2018, he was therefore six days late with his Form 86, 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.

17.  In the Applicant’s case, a delay of six days may not be considered as significant, for which he explained that he had all along been detained at the Castle Peak Bay Immigration Centre (“CIC”) until late July 2018 when he was released on recognizance but that by then he was already out of time with his intended application.  Although he did not produce any documentary evidence in support of his claim, given the relatively insignificant delay,I propose to focus on the merit if any of his intended challenge. 

18.  For his complaint in Ground (1) that the Board failed to apply high standards of fairness and that it should not have found his evidence unreliable over some minor discrepancies under cross-examination, but for which the Applicant did not provide any particulars or elaborations as to how it was so, and having examined the detailed and thorough analysis and reasoning set out in paragraphs 46 – 67 of the Board’s decision,I do not find any error in its assessment of the Applicant’s claim, nor do I find any basis to challenge the finding of the Board.  

19.  As for his complaint under Ground (2) over the Board’s approach in its assessment and determination of his claim, of which the Board did set out in paragraphs 7 and 29 – 45of its decision, and having carefully examined them I find its approach of treating the matter as a rehearing of the Applicant’s claim based on all the materials and evidence available before it including those given by the Applicant at his oral hearing before the Board entirelycorrect, and I do not see any rationale for the Board to question the Director or his decision given the mechanism for the appeal treated as a rehearing of the claim to be before a different person is actually a safeguard for fairness.  In the premises I do not find any basis or merit in this complaint of the Applicant either. 

20.  Regarding his complaint under Ground (3) that the Board failed to properly consider the relevant COI in assessing his claim, it is plain that the Board did take into account those COI in the hearing bundle as set out in paragraph 6 of its decision, but given the nature of the Applicant’s claim, I agree that it was not necessary for the Board to go into any details of the COI which was not material to its assessment or determination of the claim.  As such I do not find this ground reasonably arguable for the intended application.

21.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

22.  The fact is that it has been established by both the Director and the Board in their decisions 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.

23.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

24.  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 his leave application.

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