Md Shajahan Ali v. Torture Claims Appeal Board

HCAL 703/2018

[2019] HKCFI 3011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 703 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 the Torture Claims Appeal Board dated 27 October 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 40-year-old national of Bangladesh who entered Hong Kong illegally on 12 July 2009 and was arrested by police on the following day.  After he was referred to the Immigration Department for investigation, he 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”) and/or wanted by the police for a murder.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Khodd Bhaluka, District Kushtia, Bangladesh. After leaving school, he ran a business selling fertilizers and joined the political party Bangladesh Nationalist Party (“BNP”), later becoming the vice president of its local branch.  

3.At that time there were frequent violent conflicts between supporters of the two main rival parties AL and BNP, and on one of those occasions in early 2007 the Applicant and his fellow supporters were attacked by AL supporters during which he suffered a knife wound to his chest and for which he was hospitalized.

4.Upon his recovery the Applicant and his fellow BNP supporters planned a revenge against one of AL’s local leaders by setting fire to his home during which a child died in the fire.

5.As a result some of the BNP supporters were charged by the police for the murder, and although the Applicant was not so charged, he was afraid that the police would eventually come after him, and as he heard that some of his fellow BNP supporters were later killed by AL supporters in revenge, he became fearful for his life and therefore fled to Dhaka, and from there he departed for Nepal on 4 October 2008, returning to Bangladesh after two weeks, and on 24 January 2009 he departed for Vietnam, and from there he later went to China, and on 12 July 2009 he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 4 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.Whilst released on recognizance pending determination of his claim, the Applicant was attacked by some of his fellow countrymen in Hong Kong for unknown reasons during which one of his fingers was broken, and of which he suspected that they might have some connection with those AL supporters in his home district in Bangladesh, although he conceded to have no evidence to support his such suspicion.

7.By a Notice of Decision dated 13 February 2015 the Director of Immigration (“the 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 (“HKBOR”), Cap 383 (“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”).

8.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 those AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that after all these years that it is doubtful that they would still have any adverse interest in him, that in any event in the absence of any official involvement in the threats from those AL supporters that state protection would be available to the Applicant if resorted to, that there is no reliable evidence that he is being pursued by the police given the fact that he had been able to go in and out of Bangladesh without any problem, 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 140,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other area of Bangladesh away from his home district in large cities such as Dhaka where he had stayed before for two years without incidents and where it would be difficult if not impossible for those AL supporters to locate him. 

9.By a Notice of Further Decision dated 15 May 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation for him to submit 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”).

10.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 26 February 2015, and for which he attended two oral hearings on 12 October 2016 and 30 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found discrepancy and ambiguity in the Applicant’s evidence of his claim that it was not accepted that he had been specifically targeted by the AL supporters for harm or that they would still have any adverse interest in him after all these years when he had safely stayed in Dhaka for two years without any incident before he left Bangladesh, that there is no reliable evidence that he is being pursued by the police for the murder in his home district, and if true he is wanted by the police that he would be a fugitive from justice which cannot be a ground for non-refoulement protection, and that there is no reliable evidence that those incidents occurred to the Applicant in Hong Kong have connection with what happened to him in Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

12.On 13 February 2018 the Applicant through a lawyer filed his Form 86 under HCAL 237/2018 for leave to apply for judicial review of the Board’s decision, but before it was dealt with by the Court, his lawyer on 12 March 2018 filed a notice of discontinue to withdraw the application.

13.About six weeks later on 23 April 2018 the Applicant in person filed another Form 86 in these proceedings again for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) that the Board erred in failing to apply high standards of fairness by not arranging COI of his home country and by not arranging any medical examination before declaring that the Applicant’s credibility as questionable;

(2) that the Board failed to apply procedural fairness in assessing his claim; and

(3) that the Board failed to take into consideration that the Applicant was not legally represented in his appeal before the Board and did not advise that he could complain. 

14.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.

15.As the last day of the three-month period for the Applicant to file his Form 86 for judicial review of the Board’s decision fell on 27 January 2018, he was therefore late by almost three months with his present 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.

16.In the Applicant’s case, a delay of almost three months must be considered as significant or substantial, for which he explained at the hearing that when he filed his first Form 86 through his lawyer under HCAL 237/2018, he was then being detained at the Castle Peak Bay Immigration Centre, and it was on his lawyer’s advice to withdraw his application until his release when he could file another Form 86, and so he withdrew his first Form 86 until his subsequent release when he filed his present application which explained his delay.

17.Even assuming that it was indeed his former lawyer’s advice to withdraw his first application, and there is no documentary evidence in support of such claim, it seems to me that it was not a sound or valid advice, but that in any event he would still have been about three weeks late with his then Form 86, which when taken together with the entire period of the delay of his present leave application, I am not satisfied that they would amount to a good or valid explanation for the significant delay.

18.As for the merits of his intended application, those grounds put forward by the Applicant above are all just broad and vague assertions without any particulars or specifics or elaboration as to how they apply to his case, especially with the first two complaints which are simply factually incorrect when the Director did clearly refer to some 25 COI materials in respect of the Applicant’s home country of Bangladesh as to the political situations, state protections and internal relocations which were considered in details in paragraphs 70 – 104 of the decision in the assessment of the Applicant’s claim, and which were also made available to the Board for its consideration of his appeal.  As such I do not find any basis for these complaints of the Applicant.

19.As for his complaint under Ground (3) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

20.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty and with ample opportunity to produce further evidence in support of his claim during the adjournment of his first oral hearing for more than eight months until his second hearing.  As such I do not find anything amiss arising from the lack of legal representation in his appeal process,and I do not think this ground is reasonably arguable either.

21.As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

22.In the present case, the Applicant has failed to put forward any valid ground in which to clearly or properly identify any error of law or procedural unfairness in his process before the Director or the Board or in their decisions which may reasonably be arguable for his intended challenge, and the fact that it has been established by the Director in his 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, a decision also confirmed by the Board, 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 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 application.

Dated the 19^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