Haque Fataul Alias Masood a K M v. The Director of Immigration and Another

HCAL 635/2018

[2019] HKCFI 2443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 635 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 17 November 2017 refused; and

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

It is further directed that:

3.  if the applicant intends 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, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant 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;

5.  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;

6.  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

7.  liberty to apply.

Observations for the Applicant:

1.The Applicant is a national of Bangladesh who last arrived in Hong Kong on 20 March 2013 with permission to remain as a visitor up to 3 April 2013 when he did not depart and instead overstayed until 17 March 2015 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”).He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jessore City, Jessore District, Bangladesh. After leaving school he mainly worked as a company manager, got married with a family of two children, and became a supporter of the political party Jamaat-e-Islami (“JI”), and in 2000 he was elected as its area organizing secretary of the local office in Jessore City responsible for recruiting new members and organizing local party meetings.

3.After AL won the general election in 2008 and became the ruling party, their supporters started to harass and persecute members of rival JI everywhere, and in early 2009 after the JI office in his home district had been attacked and vandalized by the AL people, the Applicant left his home town to take shelter at his uncle’s home in Jhikargachha Area where he stayed for three months without incident, but when he heard from his family that some AL people had come looking for him with death threats and that his family had subsequently fled to his in-laws’ home in Satkhira District, he also fled to Dhaka.

4.In 2010 his wife died of a heart attack which the Applicant believed to be caused by her fear of persecution by the AL people, and by 2012 such persecution against JI members had intensified that the Applicant again fled to Chittagong, and on 20 March 2013 he left Bangladesh for Hong Kong where he overstayed and was subsequently arrested by police when he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 7 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 20 February 2017 the Director of Immigration (“the 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 (“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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the AL people to the Applicant upon his return to Bangladesh as low due to the absence of any past ill-treatment from them being directed specifically against him, that 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 156 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the Applicant 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 Chittagong where he had stayed before without incidents and where it would be difficult if not impossible for those AL people to locate him.

7.On 6 March 2017 the Applicant filed an appeal to the Torture Claims Appeal Board(“the Board”) against the Director’s decision, and for which he attended an oral hearing on 20 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 17 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found no reliable evidence that the Applicant had in fact been subjected to any torture or persecution or even targeted by the AL people prior to his departure from Bangladesh, that in any event in the absence of any official involvement that state protection would be available as well as reasonable internal relocation within Bangladesh that it would not be unduly harsh for the Applicant to safely relocate to other parts of Bangladesh that his non-refoulement claim failed on all applicable grounds.

9.On 13 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting his non-refoulement claim;

(2) that the Director failed to take into account or give sufficient weight to the argument that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies which would render the state liable to the Applicant by its failure to provide reasonable protection to its citizens before reaching his decision;

(3) that the Director failed to consider or give sufficient weight to those COI which supported the Applicant’s claim that the police in Bangladesh would not be able to protect its citizens;

(4) that the Director relied on COI that suited his pre-conceived conclusion which was a clear case of unfair attitude that would render his decision void;

(5) that the Director failed to apply high standards of fairness when he failed to consider that corruption and incompetency of the administration in Bangladesh is still a very serious problem in his assessment of the Applicant’s claim;

(6) that the adjudicator failed to make sufficient enquiry before finalizing the Board’s decision; and

(7) that the adjudicator failed to give sufficient chance for the Applicant to arrange relevant evidence in support of his non-refoulement claim as well as his appeal.  

10.The Applicant was however by then late 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 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.

11.As the last day of the three-month period for the Applicant to file his Form 86 fell on 17 February 2018, he was therefore almost two 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of almost two months cannot be said to be insignificant or insubstantial, for which he explained at the hearing that he was then in prison for having undertaken unauthorized employment, and that after his release he had had to seek medical treatment for his leg that he was unable to make his application within the required period. In the absence of any documentary evidence in support of his claim,I am not satisfied that he has provided any good reason for his delay.

13.As for the consideration of the merits of his intended application, those grounds put forward by him are however mainly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decision, or why would state acquiescence be relevant to his claim, or in what way did the Director fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or to give him sufficient chance to provide relevant evidence in support of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. In fact, even up to now in his application before me he did not provide any further or additional evidence regarding his claim which he complains of not being given the opportunity by the Board to do so.  As such I do not find any basis or merits in any of his grounds, or that any of them as reasonably arguable for his intended challenge.

14.As has been repeatedly emphasized by the Court of Appeal, 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.Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.

16.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.

17.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 delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 4^th day of December 2019.

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