MITHUN MONSHE v. TORTURE CLAIMS APPEAL BOARD

HCAL 619/2020

[2024] HKCFI 993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 619 OF 2020

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Bangladesh who arrived in Hong Kong on 4 April 2009 as a visitor with permission to remain as such up to 11 April 2009 when he did not depart and instead overstayed, and was arrested by police on 5 May 2009. After he was referred to the Immigration Department for investigation, he raised 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 Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Nasashion Akon Kandi, District Shariatpur, Bangladesh. After leaving school he followed his father’s footstep to support BNP regularly attended their local meetings and activities in his home village but without holding any official post in the party.

3.  After AL won the 2008 general election and became the ruling party, their local supporters in the Applicant’s home village started to intimidate and harass the BNP supporters, and so the Applicant and his father moved to neighbouring Palon Shariatpur Village and then Dhaka to avoid any such harassments until late 2008 when they felt it would be safe to return to their home village.

4.  Shortly after their return, some of the local AL supporters came to his home looking for the Applicant, and when he was not in the house, those AL supporters then threatened his family and beat his father, and so the Applicant again fled to Dhaka, and on 3 April 2009 he departed Bangladesh for 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 30 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 December 2014 the Director of Immigration (“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 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”).

6.  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 AL supporters upon his return to Bangladesh as low due to the absence of or low frequency or intensity of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any reason for them to have any adverse interest in him given that he was just an ordinary BNP supporter without any official post in the party, that in any event in the absence of 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 142,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other areas of the country 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 anyone to locate him.

7.  On 9 January 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not hold any oral hearing for his appeal as it did not take any issue with the factual basis of his claim and therefore proceeded to deal with the appeal on paper, and on 28 December 2016 the Board dismissed his appeal and also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of fear of harm from those local AL supporters that caused him to leave his country to come to Hong Kong to seek protection, but found no evidence or political reason for the AL people to specifically target him for harm or to have any adverse interest in him given that he was just an ordinary BNP support without any official post in the party, and that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 2 May 2017 the Applicant filed a Form 86 under HCAL 170/2017 for leave to apply for judicial review of the Board’s decision, and by a decision dated 25 August 2017 Deputy High Court Judge Woodcock refused to grant leave to the Applicant to apply for judicial review of the Board’s decision upon finding that there was no reasonably arguable basis for his intended challenge or any realistic prospect of success in his intended application.

10.  Meanwhile earlier on 15 March 2017 the Director on his own initiative invited the Applicant to submit any additional facts that he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response or reply from him, the Director by a Notice of Further Decision dated 31 March 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Bangladesh.

11.  On 6 April 2018 the Applicant again lodged an appeal to the Board against this Further decision of the Director, but as it was filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a decision dated 27 March 2020 the Board refused to allow the late filing of the Applicant’s Notice of Appeal after rejecting his explanation of only receiving the Director’s Further Decision date 31 March 2017 more than one year later on 4 April 2018 in the absence of any documentary evidence to corroborate his bare assertion and upon finding no special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

12.  On 14 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board in refusing to allow the late filing of his Notice of Appeal against the Director’s Further Decision, and in his Form and supporting affirmation he put forward the following grounds for his intended challenge:

(1)  That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing his appeal on the grounds that they did not satisfy the requirement;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  That the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible source of information had resulted in groundless speculations that it would be safe for him to return to his home country; and

(6)  That the Board reached the wrong decision in assessing his USM claim without any proper inquiry or careful understanding of his situation.

13.  These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 Board in breach of procedural fairness or had unlawfully fettered its discretion or act in a procedurally unfair manner or that the decision was unreasonable or irrational, or what source of news relied on by the Board were not officially recognized or were simply hearsay or outdated, while the Board was required by the law to decide whether to allow the late filing of the Applicant’s Notice of Appeal as a preliminary decision without any hearing. 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.

14.  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.

15.  In the Applicant’s case, the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon rejecting his explanation given for his serious delay, and while in doing so it appears in the decision that the Adjudicator did fail to take account of the merits of his appeal as part of the relevant matters of fact within the knowledge of the Board as required by Section 37ZT (2) of the Immigration Ordinance, but in my view this would not assist or advance the Applicant’s case given the fact that the same Adjudicator earlier in the first decision of the Board did already determine and reject the Applicant’s non-refoulement claim on all the other applicable grounds under torture risk, BOR 3 risk and persecution risk, and while the factual basis of even his own case that the Applicant’s claim simply did not engage the BOR 2 ground as correctly found by the Director in his Further Decision.

16.  Furthermore, the fact is that it has also been established by both the Director and the Board in their earlier decisions that the risk of harm in the Applicant’s claim even if real 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.

17.  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.

18.  Moreover, the Applicant recently on 8 March 2024 filed an affirmation requesting to “close” his application as all his problems in his home country have been solved.

19.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem for him to return to his home country, I 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