Sumon Numan v. Michael Collier Jenkins, Torture Claims Appeal Board

HCAL 2017/2018

[2020] HKCFI 1351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2017 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.  extension of time for the application for leave to apply for Judicial Review ofthe decision of Torture Claims Appeal Board dated 28 September 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 28 December 2006 and was arrested by police on 28 August 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of rival political party Bangladesh Nationalist Party (“BNP”) for refusing to join their party.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Bhadikara, District Habiganj, Bangladesh.  After leaving school he did not engage in any employment but became a supporter of the political party Awami League (“AL”) regularly attended their meetings and rallies in his home village.

3.One day in July 2006 the Applicant was approached by the local leader of BNP of his home village and his followers with a view for him to join their party, and told him to consider it seriously before they left.

4.About 2 weeks later the Applicant was approached by those BNP members again, and when he declined to join their party, they threatened that there would be violent consequences and left angrily.

5.Then one day in September 2006 while he was on his way home, the Applicant was ambushed by the same group of BNP supporters who attacked him with hockey sticks but the Applicant managed to make his escape and ran home.  As he was suffering from bruises all over his body from the assault, he therefore sought medical treatment at a local clinic.

6.However, upon returning home and told by his parents that those BNP supporters had earlier come looking for him, the Applicant immediately left home to take shelter in a friend’s place, and on the following morning he fled to the neighbouring town in Habiganj Sadar where he stayed at his aunt’s home for 3 months without incidents, but when he later heard that those BNP supporters were still looking for him everywhere, he felt it was no longer safe to remain in Bangladesh, and so on 22 December 2006 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 25 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 22 August 2014 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, 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”).

8.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 upon his return to Bangladesh as low due to the low intensity and frequency of past ill‑treatment from them, that in the absence of any reliable evidence of 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 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 supporters to locate him.

9.By a Notice of Further Decision dated 20 March 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation 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 5 September 2014, but for which he however failed to attend the oral hearing scheduled on 16 May 2017 before the Board, nor did he thereafter provide any explanation for his failure to attend the scheduled hearing.  The Board refused to schedule another oral hearing and proceeded to deal with his appeal in his absence and on papers.  On 28 September 2017 the Applicant’s appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found it incredible for the BNP supporters to expend such efforts to specifically target the Applicant to join their party given that he had held no particular post or office in AL, that in any event BNP is no longer in power since the Applicant left Bangladesh and that it is his own party AL that have since come into power by becoming the ruling party in Bangladesh, that after all these years it is doubtful that those local BNP supporters would still have any adverse interest in the Applicant, and that with reasonable internal relocation within Bangladesh for him to move safely to other areas away from his home village without any fear of being located by those local BNP supporters that his claim for non-refoulement protection failed on all applicable grounds.  

12.On 24 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  misdirection in Law in that the adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

13.By then the Applicant was however way out of time with his intended application, as Order 53 4(1) of the High Court Ordinance, Cap 4 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.

14.As the last day of the three-month period for the Applicant to file his Form 86 fell on 28 December 2017, he was therefore almost 9 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.

15.In the Applicant’s case, a delay of almost 9 months must be considered as substantial or excessive, for which the Applicant explained at the hearing that he did not receive the Board’s decision until around September 2018 for which he suspected might have been put in the wrong mailbox of his residence but without providing any further elaboration or evidence in support of his claim.

16.The record shows that the Board’s decision was sent to the Applicant’s last reported address on the same day of 28 September 2017, and even if it may have been misplaced in the wrong mailbox as suspected by the Applicant, I find it hard to believe that it would have taken 9 months to re-surface and to reach him eventually as alleged.  As such and in the absence of any reliable evidence I am not satisfied that the Applicant has provided any good or valid reason for his such serious delay.     

17.As for the merits of his intended application, I find his proposed grounds all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was extended state protection to his claim when he never made any report to the police or sought their assistance, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

18.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.

19.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

20.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his SCF was completed on his own instructions with legal assistance.  In the circumstances I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

21.The fact is 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.     

22.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.

23.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 his leave application is dismissed.

Dated the 5^th day of August 2020.

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