MIAH MUHAMMAD SHOHAG v. TORTURE CLAIMS APPEAL BOARD

HCAL 2198/2018

[2021] HKCFI 2633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2198 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent 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 26 April 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Bangladesh who entered Hong Kong illegally on 5 November 2012 and was arrested by police on 11 November 2012 for which he was subsequently convicted and sentenced to prison for 15 months. Upon his discharge form prison and was transferred to the Immigration Department for deportation, he then raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters 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 Gorgoriya, District Khagrachari, Bangladesh. After leaving school he ran a lumber supply business, and supported the political party Bangladesh Nationalist Party (“BNP”) regularly attended their local rallies and meetings.

3.  One night in 2005 while he was attending a meeting with his fellow BNP supporters, a fire broke out in the neighbouring shop owned by a local AL leader who then blamed them for the fire and made a report to the police against them, and to avoid the police investigation the Applicant fled to Chittagong where he stayed until 2006 when he noticed the presence of some AL people that he returned to his home in Khagrachari and found that the AL people had already withdrawn their case against him and his fellow BNP supporters, but the relationship between the two groups still remain tensed.

4.  In 2008 there was a violent confrontation between the local supporters of AL and BNP resulting in many injuries, and to avoid police investigation, the Applicant again fled to Chittagong and then to Dhaka until 2009 when he returned to his home district.

5.  In 2011 there was another clash between AL and BNP supporters in the neighboring village resulting in many injuries, and to avoid further harassments from the AL people and the police investigation, the Applicant again fled to Dhaka where he stayed without further incidents, and on 2 October 2012 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 11 March 2016 the Director of Immigration (“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 local AL people upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that given that the Applicant was only a supporter of BNP without any official position that there is no reason for those AL people to specifically target him or to have any further adverse interest in him after all these years, 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 adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for those AL people to locate him.

8.  By a Notice of Further Decision dated 14 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 (“Board”) against the earlier decision of the Director, the notice of which was filed on 22 March 2016, and for which he attended 2 oral hearings on 8 March 2017 and 10 April 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 26 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board also assessed the Applicant’s claimed of risk of harm from those local AL supporters to be low due to the low intensity of their past ill-treatments, that there is no evidence that he had been specifically targeted by them, and that in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Bangladesh as well as reasonable internal relocation for him to safely move to other area 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 11 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just attached a copy of the decision and his hearing bundle for his appeal before the Board but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

12.  By then the Applicant was also seriously 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 3-month period for him to file his Form 86 fell on 26 July 2017, the Applicant was therefore more than 14 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: AW v Director of Immigration[2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 14 months must be considered as extremely substantial and excessive, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 or merits in his intended application.

16.  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.

17.  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 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.     

18.  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.

19.  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