MONIR HOSSAIN v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1221/2018

[2020] HKCFI 446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1221 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review ofthe decision of Torture Claims Appeal Board dated 11 August 2017 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 38-year-old national of Bangladesh who last entered Hong Kong illegally in April 2014 and was arrested by police shortly thereafter.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on thebasis that if he returned to Bangladesh he would be harmed or killed by certain supporters ofrival 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 Shibpur, District Narsingdi, Bangladesh.  After leaving school he worked as a mechanic, and followed his family’s tradition to become a supporter of the political party Bangladesh Nationalist Party (“BNP”) and regularly attended their local meetings and rallies.

3. There was a man called Mahin who was a local leader of AL in the Applicant’s neighborhood who had had many grudges towards the Applicant and his family that they would quarrel and sometimes even fight with each other, but of which the local police would regard as private personal dispute and refused to take any action.

4. One day in 2005 one of the Applicant’s brothers was attacked by Mahin and his men that his right leg was seriously injured and had to be taken to the hospital for medical treatment.  After the attack the Applicant became fearful for his life, and fled his country first for India and later to Hong Kong where he raised a torture claim which was later rejected by the Immigration Department and that he was subsequently repatriated to Bangladesh in 2012.

5. Upon arrival in the airport in Bangladesh, however, the Applicant was almost abducted by men sent by Mahin before he was rescued by one of his brothers.  As a result,the Applicant stayed away from his home by taking shelter in other places to avoid Mahin and his men, returning to his home district only to participate in BNP’s activities.

6. One afternoon in 2013 while the Applicant was resting in a tea store after attending such a party meeting, he ran into some of Mahin’s men who proceeded to beat him until they were restrained by passers-by whereupon the Applicant managed to escape to Raipura without serious injuries.

7. However, later in the same year the Applicant and his father were arrested by the police after Mahin had made a false charge against them for assaulting him, for which they were detained for investigation for two weeks before eventually being released on bail.

8.  One evening in January 2014 Mahin and his men came to the Applicant’s home and beat him with hockey sticks until he lost consciousness, and they then raped his wife. After they left the Applicant and his wife were taken to the hospital where they were kept for several weeks.

9.  Shortly after the Applicant was discharged from the hospital and was resting at home, he received a telephone call from one of his brothers that Mahin had been killed by someone at the local market, and that he was warned that the police would be looking for him for being suspected to be behind the killing, while the local AL supporters would also be after him for revenge, and so the Applicant departed Bangladesh for China, and from there he sneaked into Hong Kong, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 11 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 16 February 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”).

11.  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 AL supporters 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 is no reliable evidence to suggest that he was being after by the AL people or by the police, or that the police were involved in his conflicts with Mahin, 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 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 adult with work experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for those AL supporters to locate him.

12.  By a Notice of Further Decision dated 16 May 2017 the Director again rejected theApplicant’s claim in the absence of any response from him to an earlier invitation to submitadditional 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”).

13.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 25 February 2016, and for which he attended two oral hearings on 15 and 23 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 11 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board found serious and substantial inconsistencies, discrepancies and incongruence in the Applicant’s account of his claim in his materials provided to the Director and his evidence given before the Board that it was not accepted that he has provided a reasonably credible or coherent account of events to establish that he faces a real risk of harm from AL supporters or the police or public authorities of Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.   

15.  On 28 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

 (1) that the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim in that they are not reasonable or fair;

 (2) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting his non-refoulement claim;

 (3) that the Director failed to take into account the fact that the Applicant was tortured at the behest of and in collusion of the police and the law enforcement agencies and that the state should be rendered liable to the Applicant due to the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

 (4) that the Director failed to consider or give sufficient weight to those relevant COI which support the Applicant’s aversions that the police in his country would not be able to protect in assessing his claim;

 (5) that the Director referred to those COI which suited his pre-conceived conclusion thus showing his unfair attitude and thereby render his decision void; and

 (6) that the Director failed to take into account that corruption and incompetency of the administration in Bangladesh are still very serious problems. 

16.  The Applicant was however by then seriously 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.

17.  As the last day of the three-month period for him to file his Form 86 fell on 11 November 2017, the Applicant was therefore more than seven months late with his application, 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. 

18.  In the Applicant’s case, a delay of more than seven months must be considered as very substantial or excessive, for which he explained at the hearing that he was in prison for some 12 months at that time for undertaking unauthorized employment, and upon his discharge he was then detained at the Castle Peak Bay Immigration Centre (“CIC”), hence he never received the Board’s decision until he was way out of time.

19.  The Applicant did not adduce any documentary evidence in support of his claim, and even if he were indeed at the material time in prison or detention, in which case I wouldaccept that there would be various restrictions arising therefrom and that there would be inevitably some delay in receiving documents and seeking legal assistance, I am not satisfied that they could be accepted as good or valid reasons for such serious delay.  

20.  As for the merit of his intended challenge, I find his proposed grounds all 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 what relevancy was state acquiescence to his claim, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant,and as such I do not find any basis or merit in any of them, or that they are reasonably arguable for his intended challenge.

21.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the Applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 28 – 49 of its decision and with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing before the Board, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.   

23.  Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

24.  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.

25.  For these reasons I am not satisfied that there is any merit or prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious 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