HOSSAIN MOHAMMAD MONER v. TORTURE CLAIMS APPEAL BOARD

HCAL 226/2021

[2023] HKCFI 2823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 226 OF 2021

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.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 30 October 2020 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Bangladesh who entered Hong Kong illegally on 8 August 2015 and surrendered to the Immigration Department on 13 August 2015 when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his former business partner over their monetary dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Khash Korora, Chuadanga, Bangladesh. After leaving school he got married and raised a family with 2 children, and ran his own business selling electronic appliances supplied by his business partner Sattar from Jessore, and for which he would pay Sattar after the supplied goods were sold.

3.  In 2011 the Applicant’s shop was robbed and vandalized, and as a result he lost much of his stocks and money and had difficulties paying Sattar for the supplied goods, and after giving the Applicant almost 2 years for the payments, Sattar started to lose his patience and on one occasion in early 2013 he lost his temper with the Applicant and attacked him with several of his followers, and threatened to kill him if he still failed to pay for his goods.

4.  After the attack the Applicant became fearful for his safety, and fled to Dhaka to take shelter in a friend’s place before moving on to Chittagong, and on 10 April 2015 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 20 December 2018 the Director of Immigration (“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 or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  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 Sattar and followers upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Sattar to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between the 2 of them without 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 159 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 areas of the country away from his home district in large cities such as Dhaka where it would be difficult if not impossible for Sattar to locate him.

7.  On 27 December 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 26 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 October 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from Sattar that caused him to leave his home country to come to Hong Kong to seek protection, and that in any event it was a private monetary dispute between him and Sattar without any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 25 February 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

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

(4)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5)  In dismissing the Applicant’s appeal that there is no indication that the Adjudicator did interact with the facts of the Applicant’s claim or conducted any analysis of the supporting documents or turned his mind to the grounds under consideration being the risk of violation of the Applicant’s right to life under BOR 2;

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay; and

(7)  That the Adjudicator had relied on some cases which are outdated considering the dramatic changes with the lack of credible source of information resulted in making groundless speculation.  

10.  By then the Applicant was however 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.

11.  As the last day of the 3 month-period for him to file his Form 86 fell on 30 January 2021, the Applicant was therefore more than 3 weeks 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: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of more than 3 weeks must be considered as substantial and inordinate, for which he explained in his affirmation that he did not receive the Board’s decision in the mail and was only informed by his immigration officer later when reporting on his recognizance, and it was only when he went to the Board on 24 February 2021 that he was given a copy of the decision, but by then he was already out of time with his application.

13.  The record shows that the Board’s decision was sent on the same day to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any details or evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for his serious delay.    

14.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are however all just broad and vague assertions of his containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply 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 that its decision was unreasonable or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with the relevant or necessary particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

15.  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 vDirector of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, 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 his claim if real 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 vJenkins & Anor [2013] 1 HKC 526.                

17.  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.

18.  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