MOHAMMED ABDUL JALIL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2411/2019

[2022] HKCFI 870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2411 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent 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 24 February 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Bangladesh who entered Hong Kong illegally on 24 November 2007 and was arrested by police on 10 March 2008. 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 the local supporters of the political party Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”) and/or by the police over the death of a fellow AL supporter but which claim he later withdrew, and then he subsequently 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 Chittagong, Bangladesh where he started to support AL while still at school by joining their youth wing Chhatra League (“CL”), during which he and his fellow AL supporters frequently came into conflicts with the BNP supporters, and during one such occasion in late 2006 when bombs were set off by those BNP supporters that he together with his fellow AL supporters were injured, and for which the Applicant subsequently made a report to the police against BNP for the bomb incident.

3.  Later in 2007 the Applicant was abducted by a group of BNP supporters and was brought to a secret place where he was beaten for making the police report about the bomb incident, and was released only after he agreed to withdraw the police report.

4.  One day in March 2007 the Applicant discovered the dead body of a fellow AL supporter and reported the matter to the police. Several days later the police came to his home looking for him for further questioning, but the Applicant was then not at home, and when he was later informed by his family of the same,  he became fearful that he would be wrongfully accused and arrested by the police, and so he fled from his home to take shelter in a relative’s place, and then to Dhaka where he on 22 November 2007 departed Bangladesh for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 2 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 20 July 2013 and 18 August 2013 for drugs offences for which he was subsequently convicted and sentenced to prison for totally 6 months. 

6.  By a Notice of Decision dated 1 December 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds other than torture risk including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  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 or the police 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 or reason for the BNP people to specifically target him for harm given his low position in the AL party, nor is there any evidence that he was being pursued by the police who were merely carrying out their duty to investigate the death of the AL supporter by requiring the Applicant for further questioning, and for which the Applicant would not be entitled to any non-refoulement protection as a fugitive of the law, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult 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 local BNP people to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 12 July 2016 during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no reliable evidence in support of any of the Applicant’s claimed threats or harm from either the BNP people or the police other than unsubstantiated hearsays or his own speculations and the fact that he was able to leave the country without any problem that it was not accepted that he was wanted by the police that it doubted the credibility of his claim, which was further undermined by his failure to raise his claim upon his arrival in Hong Kong until several months later and after his arrest by the police, that in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Bangladesh as well as reasonable internal relocation for him to move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

10.  Meanwhile the Director on his own initiative on 31 March 2017 invited the Applicant to submit any 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 21 April 2017 also rejected the Applicant’s BOR 2 Claim upon that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Bangladesh.

11.  The Applicant did not bring any appeal to the Board against this Further Decision of the Director, and instead more than 2 years later on 20 August 2019 he filed a Form 86 for leave to apply for judicial review of a decision which he dated 17 September 2017, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) That their decisions were based on irrelevant information;

(2) That they failed to determine the threats to the Applicant upon his return to his home country; and

(3) That the decisions neglected the information provided by the Applicant for his claim.  

12.  As noted above, there is no decision by either the Director or the Board that is dated 17 September 2017, with the latest one by the Director made on 21 April 2017, the challenge against which the Applicant has never lodged any appeal to the Board under Section 37ZR of the Immigration Ordinance. In any event, he would have been way out of time with such an appeal under Section 37ZS(1) of the Ordinance in which it is required to do so within 14 days of the decision, and for that matter so is his present application for leave to apply for judicial review of any of the decision of the Director or the Board, as Order 53 Rule 4(1) of the Rules of 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 his application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  Given that the Applicant would not be allowed by law to challenge the Further Decision of the Director by judicial review without first having brought an appeal to the Board, I shall therefore treat his present application as one against the Board’s decision of 24 February 2017 in dismissing his appeal against the first decision of the Director, and for which the last day of the three-month period for him to file his Form 86 fell on 24 May 2017, and hence he was more than 2 years 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 eth 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 2 years must be considered as extremely substantial and inordinate, for which the Applicant did not provide any reason or explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I fail to find any good or valid reason for his such serious delay.

15.  As for the merits of his intended application by reference to those proposed grounds put forward by the Applicant as stated above, they are just vague and bare assertions of his without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Board had erred in their decisions, or how did they neglect the information provided by him or fail to determine his claimed threats upon his return to his home country, or what information relied on by the Director or the Board were irrelevant. 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.

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 essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 25 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.  

18.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true 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.

19.  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 under all the applicable grounds including BOR 2 which in any event even on the basis of his own case simply did not engage the BOR 2 ground.

20.  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 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