MD MOZIBUR RAHMAN v. JOHN T. GLASS, TORTURE CLAIMS APPEAL BOARD

HCAL 2081/2018

[2020] HKCFI 1719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2081 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 of the decision of Torture Claims Appeal Board dated 12 May 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.   The Applicant is a 49-year-old national of Bangladesh who entered Hong Kong illegally on 18 January 2008 and was arrested by police on 18 March 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by some local supporters of rival political party Bangladesh Nationalist Party (“BNP”) and/or by the husband of his former wife.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village South Khailkur Bahar market, District Gazipur, Bangladesh.  After leaving school he went to work in Malaysia before returning to his home district in 2001 to marry his wife, raised a family of two children, and started his real estate business.  He also became a supporter of the political party Awami League (“AL”) which was the main rival party of BNP, and regularly attended their local meetings and rallies.

3.  One day in September 2007 some BNP supporters approached him to invite him to join their party, but when he refused, they threatened to kill him and proceeded to beat him by punching and kicking him all over his body, but the Applicant managed to escape and ran home.

4.  After the assault the Applicant felt it was no longer safe to remain in Bangladesh, and so he fled with his family to Dhaka, and on 13 September 2007 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  While released on recognizance pending determination of his claim, the Applicant on one occasion in July 2015 telephoned his wife in Bangladesh to ask about his children, but was informed by her that she had already divorced him and re-married a new husband who then spoke to the Applicant on the phone and threatened him to leave his wife and children alone or else he would kill him upon his return to Bangladesh.        

6.  By a Notice of Decision dated 13 April 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 Ordinance, Cap 383 (“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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those BNP supporters or his former wife’s husband upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there were inconsistencies and implausibility in his claim that seriously undermined the credibility of his claim, that there is no reliable evidence of any real intention on the part of his former wife’s husband to harm or kill him, that his party AL have since become the ruling party in Bangladesh and 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 169 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Chittagong where it would be difficult if not impossible for his perceived enemies to locate him.

8.  By a Notice of Further Decision dated 23 March 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional 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”).

9.  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 26 April 2016, and for which he attended an oral hearing on 6 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that seriously undermined the credibility of his claim, that in any event after all these years since his departure that it is doubtful that those BNP supporters would still have any adverse interest in him especially when AL have since become the ruling party in Bangladesh, and that in the absence of any official involvement that state/police protection would be available to the Applicant as well as reasonable internal relocation within Bangladesh for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

11.  On 2 October 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 in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) misdirection in law in that the adjudicator took into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

12.  However, the Applicant was by then way out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 12 August 2017, the Applicant was therefore more than 13 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 13 months must be considered as very substantial and excessive, for which he explained at the hearing of his application that at that time he was involved in some criminal case that he decided to wait for the outcome of the trial until the end of September 2018 when he was acquitted, and it was then when he proceeded to file his Form 86 and to get on with his present application.

15.  The Applicant was unable to provide any further details or particulars of that criminal case other than that it was said to involve some charge of corruption, and the only documentary evidence that he could produce was an extract of record of bail proceedings under Magistracy Case No WKCC 413/2018 which shows that the case was adjourned to 21 September 2018 and that he was accordingly granted bail on 29 August 2018.

16.  While I am prepared to accept that he was involved in some criminal case before the magistrate court sometime in 2018 and may have been detained at some stage, but as noted above, the Board’s decision was delivered in May 2017 and that he had had ample time of at least 6 months until 2018 when he became involved in the criminal case to file his Form 86 for his present application, and his explanation that he had wanted to wait for the outcome of his criminal trial simply cannot be accepted as any good or valid reason for his such serious delay.       

17.  As for the merits of his intended application, his grounds as stated above are however all just broad and vague assertions of the Applicant 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 adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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.

19.  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.

20.  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 earlier all been made available to him when he still had legal representation, 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.

21.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 50 – 67 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.  

22.  Furthermore, the fact 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.     

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 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