SOHEL AND OTHERS v. WILLIAM LAM, ESQ, TORTURE CLAIMS APPEAL BOARD

HCAL 488/2018

[2019] HKCFI 819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 488 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 the Applicants in open court;

1.  Sohel Rafiul Zaman Majid be deleted as an applicant from these proceedings;

2.  an extension of time for the application for leave to apply for Judicial Review against the decision of Torture Claims Appeal Board made on 24 August 2017 refused; and

3.  leave to apply for Judicial Review dismissed.

It is further directed that:

4.  if the applicants intend 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, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

5.  when filing the application for leave to appeal, the applicants 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;

6.  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;

7.  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

8.  liberty to apply.

Observations for the Applicants:

1.  Although the first two applicants are husband and wife respectively with the 3^rd applicant being their son, they were of different nationality and came from different countries on different occasions and made their own separate non-refoulement claim on different basis which were separately dealt with and assessed by the Immigration Department, and after their respective claim was rejected they then made their appeal separately to the Torture Claims Appeal Board (“the Board”) again on different grounds which were also dealt with separately by the Board, but after their appeals were dismissed by separate decisions of the Board, they jointly filed one single Form 86 for all three of them for leave to apply for judicial review of the respective decisions of the Board based on grounds put forth by the 1^st applicant (“A1”) relevant mainly to his claim, but which the 2^nd applicant (“A2”) apparently accepted also for herself and for the 3^rd applicant (“A3”), inevitably resulting in unnecessary confusions as to the different facts of their respective case which could have been avoided had they seen fit to make separate application for judicial review of the respective Board’s decision with proper grounds relevant to their own case.  In the circumstances I shall endeavor to deal with their respective application separately where appropriate in this decision.

2.  Furthermore, Sohel Rafiul Zaman Majid, the 4^th applicant who is apparently the younger child of A1 and A2 born in Hong Kong subsequent to their claims but without any further details and was never a party in either of their claims before the Director or the Board, nor has any claim been made on his behalf as far as I know, but was somehow named as the 4^th applicant in A2’s Form 86 and leave application now before me.  As such the 4^th applicant should not have been named as a party in the absence of any claim or any decision thereof that needs to be judicially reviewed, and accordingly I order that he be deleted as an applicant from these proceedings. 

A1’s claim

3.  A1 is a 33-year-old national of Bangladesh who entered Hong Kong illegally on 15 December 2013 and was arrested by police on 15 January 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by members/supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

4.  A1 was born and raised in Village Asa, Barisal District, Bangladesh to a family of supporters of the Bangladesh Nationalist Party (“BNP”) in which his father and elder brother were members, and whilst still at school he joined their student wing Bangladesh Jatiotabadi Chatra Dal (“JCD”), and later also became a member of BNP promoting their ideology and policies, when he started to come into frequent conflicts with supporters of rival AL.

5.  One day in January 2009 whilst A1 was having a discussion with his fellow BNP members, they were attacked by a group of AL members with knives and sticks that A1 suffered bruises to his body with knife wounds to his left leg that he was subsequently hospitalized for a month, and upon discharge he took shelter at his aunt’s place in Dhaka until May 2009 when he returned to his home village.

6.  On another occasion in October 2009 whilst A1 was attending a party meeting together with his fellow members and supporters, a large group of AL members and supporters appeared with firearms and started shooting indiscriminately at the BNP people when A1 was hit by a bullet in his left arm which required hospitalization for two months, during which some AL people came to his home looking for him, and when his father refused to tell them where A1 was, they beat him violently that he also ended up in the hospital for treatment.

7.  Upon discharge from the hospital A1 avoided the local AL people by taking shelter at his cousin’s place in Sylhet, Sunamganj for two years without any further incidents until early 2012 when he attended a BNP meeting and on his way back to his cousin’s home, he was attacked by several AL people with wooden sticks but managed to escape and fled to another cousin’s place in Bikrampur where he decided that it was no longer safe to remain in Bangladesh, and so he departed in July 2012 for China where he stayed until 13 December 2013 when he sneaked into Hong Kong.

8.  Upon his arrest by the police on 15 January 2014, he raised a torture claim with the Immigration Department on the basis that if he returned to Bangladesh he would be harmed or killed by the AL people, which claim was later taken as a non-refoulement claim upon the commencement of the unified screening mechanism (“USM”), and for which he later completed a Non-refoulement Claim Form (“NCF”) on 25 September 2015 and attended screening interview before the Immigration Department with legal representation frrm the Duty Lawyer Service (“DLS”).   

9.  While released on recognizance pending determination of his claim, A1 formed a relationship with the 2^nd applicant (“A2”), she being an Indonesian non-refoulemant claimant based on her own grounds and later gave birth to their child the 3^rd applicant (“A3”) on 5 October 2014 in Hong Kong, and for whom A2 also made a non-refoulement claim on the same basis as hers.  On 13 November 2015 A1 and A2 married in Hong Kong.

10.  By a Notice of Decision dated 27 November 2015 the Director of Immigration (“the Director”) rejected A1’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”).

11.  In his decision the Director took into account all the relevant circumstances of A1’s claim and assessed the level of risk of harm from those AL people 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 that he had been specifically targeted by the AL people, that in the absence of official involvement that state or police protection would be available to A1 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 130,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those AL people to locate him.

12.  By a Notice of Further Decision dated 8 December 2016 the Director again rejected A1’s claim upon receiving and considering additional facts from him 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”).

13.  By then A1 was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 December 2015, and for which he attended an oral hearing on 5 July 2017 before the Board with legal representation from DLS during which he gave evidence and answered questions put to him by the adjudicator for the Board, and with submissions made on his behalf by his lawyer.  On 24 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board found the evidence of A1 vague and unreliable to be given evidential weight and which had been further undermined by the fact that he did not seek non-refouleemnt protection upon arrival in Hong Kong until after his arrest, and that in any event it was not accepted that those AL people would still have any adverse interest in looking for him all over Bangladesh after all these years that there are places other than his home village such as Dhaka for him to live safely without undue hardship, and concluded that his claim failed on all applicable grounds.

15.  As noted A1 subsequently applied for leave to apply for judicial review of both decisions of the Director and the Board not just for himself but also jointly for A2 and A3, hence before proceeding to deal with that application which is now before me, it would be relevant to next consider the claim of A2 and A3.     

A2 and A3’s claim

16.  As noted above A2 is a 33 year-old Indonesian who came from Kendal, Central Java, Indonesia to work in Hong Kong in 2011 as a foreign domestic helper, but after her second employment contract was prematurely terminated in April 2013, she was allowed an extension of stay pending a new contract, but when that did not materialize she overstayed in Hong Kong and formed a relationship with A1 with whom she gave birth to A3 and subsequently married in Hong Kong.

17.  On 15 January 2015 she was arrested by the police and raised a torture claim for herself and A3 with the Immigration Department that if they returned to Indonesia they would be harmed or killed by her mother and her abusive step-father for refusing to marry the man whom they had chosen for her and for marrying A1 of different nationality and without their approval.

18.  Their torture claim was subsequently taken as a non-refoulement claim under USM, and for which they completed a joint NCF on 17 August 2015 and attended screening interview before the Immigration Department with legal representation from DLS.

19.  On 27 November 2015 their claim was rejected by the Director under torture risk, BOR 3 risk and persecution risk in that the level of risk of harm from A2’s mother and step-father was assessed as low, that state or police protection would be available as well as internal relocation to other parts of Indonesia away from A2’s home district in large cities such as Jakarta where A2 as an able-bodied adult with work experience can safely move with A3 and where it would be difficult if not impossible for her mother or step-father to locate them.

20.  By a Further Decision dated 8 December 2016 the Director also rejected their claim under BOR 2 risk.  By then they had filed an appeal to the Board against the early decision of the Director, and for which they attended an oral hearing on the same day of A1’s appeal to the Board on 5 July 2017 before the same adjudicator and with the same legal representation from DLS, but as I understand their appeal hearing was conducted separately from A1’s, and for which A2 gave evidence and answered questions on her own and on behalf of A3 and with submissions from her lawyer.

21.  On 24 August 2017 their appeal was dismissed by the Board which found that A2 had not been inflicted with any severe pain or suffering that has attained the minimum severity under any of the applicable grounds, that in any event her case is about domestic violence and intra-family animosity over private matters with no official involvement that state or police protection would be available to them as well as internal relocation elsewhere in Indonesia away from A2’s home district as it was not accepted that her parents would be interested in locating her and/or A3 all over Indonesia in order to harm or kill them.   

Joint leave application for judicial review

22.  On 26 March 2018 the applicants jointly filed their Form 86 for leave to apply for judicial review of both decisions of the Board, and put forward the following grounds for their intended challenge:

(1)  misdirection in law in that the adjudicator misdirected himself on the law by taking into account that applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in 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 their 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 their 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 applicants;

(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 applicants resulting in unfair procedure.  

23.  By then however the applicants were late with their Form 86, 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.

24.  As the three-month period within which the applicants were to file their Form 86 expired on 25 November 2017, they were therefore four months late with their 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.

25.  A delay of four months must be considered as substantial or excessive, and for which the applicants failed to provide any explanation either in their affirmation or at the hearing.  As such I am unable to find any valid reason for their serious delay.  

26.  As for the merits of their intended application with reference to their proposed grounds or complaints, most of them are just broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their 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 relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their 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 applicants.

27.  Regarding their complaint that the adjudicator failed to take into account the relevant COI as to the current human rights circumstances in Bangladesh specifically (a) USHR 2010; (b) USRF 2010; and (c) The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011, which they argue would have provided sufficient COI to corroborate their version of events and legitimate fear and to support a finding of a consistent pattern of human rights abuses in Bangladesh and that there is a lack of state protection, there is no evidence to suggest that the applicants or their lawyer did produce or refer to these documents at their appeal hearing, nor have they elaborated how they would have assisted or advanced their case either in their appeals before the Board or in their application now before me.

28.  In fact, upon close examination of those COI referred to in the decisions of the Director as to A1’s claim (§§42 – 44 and Appendix) and A2’s claim (§§41 – 43 and Appendix), and of the Board as to A1’s claim (§27) and as to A2 and A3 (§16) all of which show the latest situations respectively in Bangladesh and Indonesia as recently as in 2017, I do not find any basis or merits in the applicants’ complaints over the adjudicator’s assessment of COI, and I do not find any of them reasonably arguable for their intended application.

29.  The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their 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 them insufficient time to prepare for their appeal.

30.  Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants 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 their NCF, records of their screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all been already made available to them, and that they were then still legally represented by the same lawyer from DLS, whilst their NCFs were completed on their own instructions with legal assistance, and that at their respective oral hearing they never raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal.  In any event as noted above they were then still legally represented by DLS and no issue was ever taken by their lawyer with the hearing bundle either.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

31.  Furthermore, 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 applicants’ respective claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of their respective home country in Bangladesh or Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

32.  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 applicants’ claim.

33.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and in the absence of any good reason for their substantial delay, I refuse to extend time for their late application which is therefore dismissed accordingly.

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