TAIZUL ISLAM v. WILLIAM LAM, ESQ, TORTURE CLAIMS APPEAL BOARD

HCAL 1963/2018

[2020] HKCFI 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1963 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 20 January 2017 refused; and

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

It is further directed that:

3.  if the Applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the Applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.   The Applicant is a 37-year-old national ofBangladesh who entered Hong Kong illegally on 16 August 2007 and was arrested by police on 10 May 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 his former business partner and/or his customer over certain business disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Village Bashira, District Munshiganj, Bangladesh.  After leaving school he worked in an engineering workshop building flour processing machines, and in 2005 he formed his own workshop in partnership with his friend Badal in District Narayanganj assembling flour machines and machine parts for their customers.

3.   In May 2006 the Applicant secured a lucrative contract with a wealthy mill owner Shah Alam to build and set up flour machinery in his mill within one year, for which a sizable deposit was paid to the Applicant for purchasing machine parts and materials.

4.   However, one day in October 2006, Badal suddenly telephoned the Applicant to tell him that he did not want to continue with their partnership, and when the Applicant arrived in their workshop on the same day, Badal was already there with several of his followers arrived shortly and refused to allow the Applicant to remove anything from the shop, claiming that the workshop and everything in it belonged to him alone by producing some documents showing that he was the sole owner of the shop and its business, and when the Applicant insisted that those documents were fake and that he wanted to enter the shop, Badal’s followers pounced on the Applicant by punching and kicking him until they were restrained by other shop owners in the neighbourhood.

5.   After the incident the Applicant made a complaint to the village elders and the local police, but neither refused to do anything after Badal had shown them those documents.  The Applicant then met with Shah Alam the mill owner to explain to him that under the circumstances he would not be able to fulfill the contract, but Shah Alam insisted that he must either fulfill the contract or to return the deposit to him.

6.   The Applicant therefore returned to the workshop to try to resolve the dispute with Badal but to no avail, and after Shah Alam had called him again to press him for the return of the deposit and threatened to kill him if he failed to do so, the Applicant therefore fled from his home district to take shelter in different places of his friends in Chittagong, Muradpur, Jurain and Dhaka without further incidents, but as he still felt it was not safe in Bangladesh, he therefore departed on 5 August 2007 for China, and from there he later sneaked into Hong Kong and raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 21 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.      

7.   By a Notice of Decision dated 19 June 2014 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 (“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 Badal or Shah Alam upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that having already taken the shop and business Badal would not have any further adverse interest in him, while his dispute with Shah Alam was personal monetary matter 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 166 million people spread across a vast territory of more than 143,000 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 Badal or Shah Alam to locate him.

9.  By a Notice of Further Decision dated 24 November 2016 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”).

10.  The Applicant the lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decisions of the Director, and for which he attended an oral hearing on 20 December 2016 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 20 January 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence as to his claim to cast doubt on his credibility, which was further undermined by his failure to raise his claim upon his arrival in Hong Kong until some 8 ½ months later after his arrest by the police, that in any event it had been more than 10 years since his disputes with Badal and Shah Alam that it was doubtful that they would still have any adverse interest in him after all these years, and that with reasonable internal relocation available within Bangladesh for the Applicant to move safely to other area away from his home district to re-establish his life and work without any fear or risk of being located by his perceived enemies that his claim for non-refoulement protection failed on all applicable grounds.  

12.  On 18 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)   Misdirection in Law by taking 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.  

13.  The Applicant was by then out of time with his application, as Order 53 Rule 4(1) of the High Court Ordinance, Cap. 4 requires that 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.

14.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 20 April 2017, he was therefore 17 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of 17 months must be considered as very substantial and excessive, for which he failed to provide any explanation either in his supporting affirmation or at the hearing, and as such and in the circumstances of his case I am unable to see any reason for his such serious delay.     

16.  As for the merits of his intended application, those proposed grounds for his challenge 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 how could the meaning of extended state protection be relevant to his claim, 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 for his intended challenge.

17.  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.

18.  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.

19.  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 SCF, 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 SCF 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.

20.  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 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.     

21.  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.  As such I do not find any merit in his intended challenge.

22.  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 his leave application is dismissed.

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