ROFIK SHEK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 7/2024

[2024] HKCFI 1287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 7 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	onsideration of documents and Applicant being present in open court;

1.  The extension of time for the application for Judicial Review be refused; and

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

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which is 18 October 2019. His application was filed on 2 January 2024, which is late for more than 4 years and 2 months. This issue will be dealt with below.

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 18 March 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 49, is a national of Bangladesh. He entered Hong Kong illegally on 30 January 2007 and was arrested by the police on 10 March 2007. The applicant made a torture claim on 19 March 2007, which was rejected on 28 August 2013. The subsequent appeal was also rejected on 27 May 2014. On 24 September 2013, the applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[2]. The non-refoulement claim was made on the basis that, if refouled, he would be harmed or even killed by the members Awani League (“AL”).

5.  According to the applicant, he joined the Bangladesh Nationalist Party (“BNP”) as an active member in or about 1986. In 1991, he was promoted to General Secretary of BNP in his home district. This was the time when BNP was in power. When AL came to power in 1996, they suppressed BNP members. The applicant therefore left office of General Secretary and reverted to an ordinary member in 1997.

6.  The applicant claimed to have been beaten up by AL members in mid-1996, end of 1996 and in October 1998. In all these three incidents, AL members attacked BNP members including the applicant and filed cases against them. The applicant was detained as a result, but was released each time after his family settled the matter with AL.

7.  In 2005, BNP and AL had a fight over a meeting venue. The applicant was beaten up seriously, but no charge was filed against him by the police on this occasion. The applicant then left for India in February 2005. He returned after 27-28 days because he did not have enough money to support himself. He stayed in his uncle’s house upon return to Bangladesh for around three months and went back to his home after being assured by AL members that they would not harm him.

8.  In around 2006, AL became stronger and started violence on BNP members. On one occasion, an AL leader broke his arm during a fight and he was admitted to hospital (“the 2006 fight”). About a week later, the police came to arrest the applicant for assault while he was not at home, but he learnt from his father that he was one of the seven defendants in the case. Around 5-6 days later, the police returned and arrested the applicant without administering any caution. He was brought to Court the next day and was detained. The applicant was granted bail after spending three months in detention and the case was settled out of court following discussion between the BNP and AL leaders.

9.  One day in mid-2006, after a BNP meeting, 6-7 AL members came and attacked the BNP members, including the applicant. His mouth was hit by a hockey stick, causing one of his front teeth to fall out. The back of his neck was hit by an axe, resulting in a three-inch deep cut. His leg was also injured due to the explosion of a bomb. The applicant was admitted to the hospital as a result, where he stayed for six days. No report however was made to the police.

10.  In or around October 2006, AL members came to the applicant’s house. They threatened him in his face and through a message conveyed to his father that he would be killed due to his past involvement in the BNP. They also requested him to leave BNP. Again, the applicant did not report the incident to the police, but only to BNP leaders. Due to the threats posed by the AL members, the applicant left for his friend’s house in Dhaka. While staying in Dhaka, he was informed by his father that AL members kept coming and asking for his whereabouts. In around 31 December 2006 or 1 January 2007, the applicant learnt about the death of his fellow BNP member who also moved to Dhaka to avoid threats from the AL. He therefore felt unsafe in Dhaka and decided to come to Hong Kong.

11.  In June 2018, the applicant learnt from his wife that numerous BNP members were arrested, imprisoned and tortured. His wife also told him that AL members would still come to his house around once per month to seek for his whereabouts. In July 2018, a friend of the applicant, who returned to Hong Kong from Bangladesh, told him that AL had allied with its party members and the police force in persecuting BNP members.

12.  The applicant was of the view that he could not seek protection from the police because AL was in power and the police worked for them. The police were also corrupt and the applicant did not have the money to bribe them. He also considered internal relocation within Bangladesh not viable because AL members would eventually know his whereabouts given their connections within the country. He also had no friends or relatives elsewhere.

13.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 27 November 2018 (“the Director’s Decision”).

The Director’s Decision

14.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

15.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director was of the view that the action by the AL members indicated that they had no real intention to seriously harm the applicant. It was merely his speculation that he, as an ordinary BNP member, was specifically targeted by AL members. Furthermore, the applicant’s return to Bangladesh shortly after he fled to India was also inconsistent with the behaviour of a person who was genuinely in fear of being harmed [16]-[18], [20]-[21].

16.  In any event, (i) state protection will be available to him upon his return [22]-[23]; (ii) internal relocation is viable [19], [24]-[25] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31] or Persecution risk [32]-[37].

The Board’s Decision

17.  The applicant appealed the Director’s Decision to the Board. On 6 May 2019, the Board conducted an oral hearing.

18.  In the Notice of Appeal, the applicant claimed that many houses were set on fire in 2017 and 2018, including his relatives’ houses. He also claimed that he had been brutally assaulted by the police for no reason [43].

19.  During the hearing, the applicant claimed that his younger brother was beaten up when he said he did not know the whereabouts of the applicant in January 2019 [47]. When asked about the circumstances of the claimed major assaults he experienced in the past, the applicant said he could not remember and could only recall one incident in which there was a fight resulting in the death of an AL member and that five people including himself was accused of murder [52]-[64]. The applicant further revealed during the hearing that the AL members that asked for his whereabouts were actually his neighbours [72]. He also told the Board that the statement attached to the Notice of Appeal was written by his friend [79] and clarified that the claims concerning the burning down of houses and his assault by police were incorrect [85], [88].

20.  The Board noted that the applicant gave inconsistent evidence as to whether he was present at the BNP meeting prior to the 2006 fight, circumstances of the attendances by AL members to his home in October 2006 and the time for obtaining his passport [106]-[109]. He also exaggerated his claims on the infeasibility of relocation, seriousness of the injuries caused by axe and the ongoing visits by AL members to his home [110]-[112]. Moreover, the Board was skeptical as to why the applicant was unable to recall dates for the significant incidents during the hearing [114].

21.  The Board accepted that the applicant was actively involved in BNP in mid-1990s. It accepted that he was injured in the most serious incident and he reduced his involvement in BNP thereafter. The Board also accepted that there were some cases filed against him by AL, which were subsequently settled [118]-[120]. However, the Board did not accept that the applicant was present in the 2006 fight. They also did not accept that AL members came to his home in October 2006 to threaten him either in his face or in a message conveyed to his father, which catalyzed his decision to leave the country [121]-[122]. Although it accepted that the applicant’s fellow BNP friend was killed, the Board found no evidence that this his death was related to AL [123]. They also found no correlation between the applicant and the beating up of his younger brother in 2019 given that 12 years had passed since the applicant had already left Bangladesh [124].

22.  Based on such findings, the Board were not satisfied that the applicant faced any reasonable possibility of suffering serious or significant harm if he returned to Bangladesh [126]. It concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [15]-[24], [128]-[130]. Furthermore, internal relocation was also available to the applicant [127]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

23.  The applicant has filed Form 86 dated 2 January 2024 for leave to apply for judicial review of the Board’s Decision.

24.  In his affirmation in support of his application, the applicant said he cannot return to his country as his life will be in danger. He did not raised any specific ground.

DISCUSSION

25.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

26.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he was free to speak before the Board. He considered that the Board had not made any mistake, but it is dangerous for him to return to Bangladesh.

27.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

28.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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