UDDIN M NEZAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1243/2019

[2023] HKCFI 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1243 of 2019

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 / 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 7 September 2018 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Bangladesh who entered Hong Kong illegally on 1 January 2016 and surrendered to the Immigration Department on 5 January 2016 when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”) and/or by the police over some false charge made against him by those AL people. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Chinair, Brahmanbaria Sadar, Bangladesh. After leaving school he ran a cosmetics store in Dhaka, and supported BNP by regularly attended their local meetings and activities.

3.  One day in June 2015 while attending a local BNP rally, the Applicant together with his fellow supporters were confronted and attacked by a group of AL supporters with knives and hockey sticks that he was struck in the head and lost consciousness, and was subsequently taken to a hospital for medical treatments.

4.  After his discharge from the hospital, the Applicant took shelter in a friend’s place, during which he was told by his parents that police had come to his home looking for him as those AL supporters had made a false claim implicating him in a recent bomb blast incident, and so the Applicant fled to Chittagong and then Sylhet until August 2015 when he returned to his home in Brahmanbaria where he kept a low profile.

5.  However, as he was still fearful for his safety, the Applicant in October 2015 went to Kushtia to stay with a friend, and later when he heard that the police were still looking for him everywhere, he therefore departed Bangladesh in December 2015 for China, and from there he later sneaked into Hong Kong on 1 January 2016 and subsequently surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 6 September 2017 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local AL supporters or the police upon his return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no reliable evidence that he had been pursued by the police given that he was able to leave the country without any difficulty or of any reason for those local AL supporters to have any adverse interest in him or to specifically target him for political reason given that he was just an ordinary BNP supporter without holding any official post in the party other than just some membership in its student wing years ago when he was a school student, that in any event in the absence of any evidence 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 157 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 young man with work experience to move to other part of the country 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 anyone to locate him.

8.  On 14 September 2017 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 4 May 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 7 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found multiple inconsistencies and implausibility in the Applicant’s evidence that it doubted his claim of fear of harm from the AL supporters or the Bangladeshi police that caused him to leave his home country to come to Hong Kong, that there is no reliable or authentic evidence of any adverse interest of the Bangladesh police or authorities or the AL people in the Applicant other than his own bare and vague assertions that it considered that he was not a credible witness and that he had fabricated his entire claim that it rejected his evidence to have ever been involved in any political activities in Bangladesh prior to his departure or of any fear of harm from anyone in Bangladesh, and concluded that he does not face any real risk of any of the proscribed harms from the AL people or the Bangladesh authorities upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 8 May 2019 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.  By then the Applicant was also seriously 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 day 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.

12.  As the last day of the three-month period for his to file his Form 86 fell on 7 December 2018, the Applicant was therefore some 5 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.

13.  In the Applicant’s case, a delay of 5 months must be considered as substantial and inordinate, 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 or valid reason for his such serious delay.

14.  As for the merits, if any, of her 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 merits in his intended application either.

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 v Director of Immigration [2018] HKCA 524.

16.  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 26 – 41 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.

17.  The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.

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