RAHMAN MD MOTALEB v. TORTURE CLAIMS APPEAL BOARD

HCAL 386/2024

[2024] HKCFI 1932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 386 OF 2024

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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 14 July 2022 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of Bangladesh who entered Hong Kong illegally on 26 August 2011 and was arrested by police on 2 September 2011. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as he supported their rival Jamaat-e-Islami Party (“JeI”) and/or by his neighbour or her family over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Narisha Satbhita, District Dohar, Dhaka, Bangladesh. After leaving school he was unable to find gainful employment and relied mainly on his father who was a hawker in their home village.

3.  In 2000 the Applicant started to support JeI regularly attended their local meetings and activities, and in 2003 he joined their local social welfare and economic group known as Jubok which provided various welfare services and investment businesses to the local community, and in which he worked as a clerk assisting the customers in various matters including filling out forms for depositing or withdrawing funds, and for which he had also persuaded some of his friends and a neighbour by the name of Salina to join the various investment schemes offered by Jubok.

4.  One day in October 2006 while the Applicant and his fellow JeI supporters were attending an official event of JeI when they were attacked by the local AL supporters with wooden poles and other weapons that many of them were injured but the Applicant managed to make his escape from the scene unharmed and went home safely.

5.  Thereafter the political situations in the country deteriorated and violent conflicts between AL and JeI intensified, and in 2009 AL started to influence the Bangladeshi authorities to launch investigations into JeI’s Jubok activities, resulting in some of its members being charged with frauds, and by June 2009 all offices of Jubok were shut down and with many members arrested by the police.

6.  In July 2009 the Applicant was approached by Salina and her family for a meeting concerning the loss of her investment at Jubok, during which 2 of her relatives, Eken who was a police superintendent of Dhaka, and his son Ilyas, a member of the Rapid Action Battalion (“RAB”) of the Bangladesh police force, blamed the Applicant for the loss and forced him with death threats to sign an agreement to repay Salina for her loss.

7.  As the Applicant did not have the means to do so, he became fearful for his life and therefore fled from his home village to Rajanagor Khalpar of Munshigonj, and then on to Sonir Akhra in Dhaka where he hid in a relative’s place, and on 4 July 2011 he departed Bangladesh for India before returning to Bangladesh shortly thereafter.

8.  On 24 August 2011 the Applicant again departed Bangladesh but this time 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 5 May 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 12 August 2015 and a Notice of Further Decision dated 24 October 2016 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”).

10.  In his decisions 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 or Eken/Ilyas upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any intention of those local AL people to seriously harm or kill him or any political reasons for them to specifically target him for harm given that he was just a low level JeI member, or any evidence of Eken/Ilyas to harm or kill him other than to press him to repay Salina for her loss which was in any event just a private monetary dispute between them 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 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

11.  On 24 August 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 2 November 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 October 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  The Applicant’s subsequent leave application to apply for judicial review of the Board’s decision under HCAL 41/2017 was also refused by Deputy High Court Judge Woodcock on 27 October 2017, but on appeal he was granted leave by the Court of Appeal under CACV 248/2017 on 5 July 2018 to apply for judicial review of the Board’s decision, and on 15 October 2019 the Board’s decision was by consent quashed by the Court and that the Applicant’s appeal was remitted to a differently constituted Board for fresh determination, and for which the Applicant attended another oral hearing on 28 October 2021 with his lawyer from DLS before the Board during which he again gave evidence for his claim and answered questions raised of his claim by a different Adjudicator for the Board, and with submissions made on his behalf by his lawyer.

13.  By a Decision dated 14 July 2022 the Board dismissed the Applicant’s appeal and rejected his non-refoulement claim upon finding material inconsistencies and discrepancies in his evidence that it doubted the credibility of his claim of fear of harm from the AL people in the absence of any reliable evidence of any political reasons for them to specifically target him for harm given the low level of his position in JeI or of any real intention of Salina’s family or Eken/Ilyas to seriously harm or kill him over the loss of her investment in Jubok that caused the Applicant to leave his country to come to Hong Kong to seek protection, and that in any event his dispute with Salina and/or Eken/Ilyas was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

14.  On 29 February 2024 the Applicant filed his Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board, and in his supporting affirmation he repeated his claim as before and recited various authorities and precedents generally applicable to non-refoulement claims, and then put forward various grounds for his intended challenge of the Board’s decision as regard his claim and appeal, of which he confirmed at the hearing as follows:

(1) That the Board erred in failing to properly assess the Applicant’s claim under torture risk notwithstanding that the risk from Eken and Ilyas was real and personal to the Applicant, as Eken was a police superintendent of Dhaka while his son Ilyas was an officer of the RAB;

(2) That the Board erred in law in failing to apply the proper tests in its assessment of the BOR 2 Risk and BOR 3 Risk in the Applicant’s claim;

(3) That the Board misdirected itself as to the reasons for concluding that the Applicant’s evidence were unbelievable and in particularly in relation to critical aspects of his claim that resulted in an unreasonable irrational and illogical decision; and

(4) That the Board failed to take into consideration the evidence of the Applicant in relation to his political beliefs.

15.  By then the Applicant was however 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 to extend the period within which the application shall be made.

16.  As the last day of the three-month period for him to file his Form 86 fell on 14 October 2022, the Applicant was therefore more than 16 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.

17.  In the Applicant’s case, a delay of more than 16 months must be considered as extremely substantial and inordinate, for which he explained in his affirmation that he was arrested by police on 4 November 2020 for drugs trafficking and was subsequently convicted and put in imprison until 25 March 2023 when he was discharged and then placed under detention by the Immigration Department, and it was in prison that he received the Board’s decision, but his subsequent application for Legal Aid to challenge the Board’s decision was refused, while it was difficult for him to seek legal assistance when in prison or under detention, all of which had contributed to his serious delay with his application.

18.  The record shows that the Board’s decision was sent on the same day of 14 July 2022 to the Applicant c/o his lawyer without being returned through undelivered post, upon which the Applicant would have been advised by his lawyer of the procedural requirements for his intended challenge of the Board’s decision, and while accepting that he had had no further legal representation thereafter and the inevitable delays to mails and restrictions in accessing legal assistance while in prison and/or detention, but with assistance available from the stationed welfare officers within those institution, I am not satisfied that those restrictions or inconveniences could justify such serious delay on the part of the Applicant with the filing of his Form 86 in the present case.

19.  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 unreasonable irrational or illogical, or how did the Board fail to properly assess his claimed risk of harm from Eken/Ilyas or to apply the proper test in the assessment of his claim under all the applicable grounds on the factual basis of even his own case that it was a just private monetary dispute between the Applicant and Salina’s family without any official involvement or political element that the Board was clearly entitled to find the availability of state protection and reasonable internal relocation to negate or minimize such risk upon the Applicant’s return to Bangladesh. 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.

20.  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.

21.  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 21 – 79 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.

22.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risks of harm in his claim even if real are localized ones 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.

23.  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.

24.  For all 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 reasons 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