ARMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 548/2020

[2025] HKCFI 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 548 OF 2020

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 59-year-old national of Bangladesh who last arrived in Hong Kong on 22 September 2005 as a visitor with permission to remain as such up to 6 October 2005 when he did not depart and instead overstayed, and was arrested by police more than 7 months later on 24 May 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Muriauk, Lakhai, Habiganj, Bangladesh. After leaving school he ran his own pharmacy store, got married and raised a family with 5 children in his home district, and supported AL regularly attended their local meetings and activities, during which he and his fellow AL supporters would often come into violent conflicts with the BNP supporters, and on one such occasion in mid-2000 he was attacked with hockey sticks that he suffered a broken elbow.

3.  In another attack in mid-2002 the Applicant suffered a broken finger, while the harassments also consisted of a series of false charges being made against him to the police that he had to put up with the ordeal of being detained for lengthy interrogations by the police until his inevitable release without charge.

4.  In August 2003 while he was away to Dhaka to purchase supplies for his pharmacy shop, the Applicant was informed by his brother that the BNP people had again tried to launch another attack on him but when they were unable to find him in his home district, they made another false charge against him to the police who again came to his home looking for him for investigation, and to avoid another lengthy interrogation by the police or to put up with persisted harassments by the local BNP supporters, the Applicant decided to remain in Dhaka without returning to his home district, and in September 2004 he departed Bangladesh for China, during which he had travelled to Hong Kong on various occasions.

5.  However, on his last trip to Hong Kong in September 2005, the Applicant did not depart and instead overstayed, and upon his subsequent arrest by the police more than 7 months later in May 2006, he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 30 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 4 June 2012 for using a false instrument for which he was subsequently convicted and sentenced to prison for 8 months.

7.  By a Notice of Decision dated 26 September 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

8.  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 BNP supporters 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 them to seriously harm or kill him other than the usual intimidation and harassments common between supporters of rival political parties in Bangladesh, that in any event 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 157 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 he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

9.  On 9 October 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 24 July 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 September 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s evidence of his political involvement in AL and of being threatened and harassed by the local BNP supporters, but found no reliable evidence of any real intention of those BNP people to seriously harm or kill him other than the usual intimidations and harassments common between supporters of rival political parties in Bangladesh, that it is not accepted that after all these years since he left the country that there would still be any adverse interest in him, and that in any event AL has since become the ruling party of the country that state or police protection would be available to the Applicant if resorted to that it concluded that there is not any real risk of any form of the proscribed harm that he will face upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 8 April 2020 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)  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)  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)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

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

(5)  That in dismissing the Applicant’s appeal there was no indication that the Adjudicator had interacted 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 of the risk of violation of the Applicant’s right to life under BOR 2;

(6)  That the Adjudicator had relied on cases clearly outdated considering the dramatic changes with the lack of credible source of information had resulted in groundless speculations;

(7)  That the Adjudicator failed to take into account of the documents submitted by the Applicant to show that his problems in his home country were indeed very severe.

12.  By then the Applicant was however 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 to extend 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 3 December 2018, the Applicant was therefore more than 15 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 15 months must be considered as extremely substantial and inordinate, for which he failed to provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision as sent on the same day of 3 September 2018 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

15.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some bare and vague assertions 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair 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 information relied on by the Board were outdated or how did the Board fail to make proper analysis of the Applicant’s claim under all the applicable grounds. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

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 Board rejected his claim for the thorough and detailed analysis and reasoning set out in 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.

18.  Furthermore, 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 real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also agreed and 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.

19.  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.

20.  Moreover, the Applicant recently on 28 November 2024 filed an affirmation requesting to withdraw his application as his problem in his home country has already been resolved and that it is now safe for him to return to Bangladesh.

21.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I 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