Md Abu Hena v. The Petition Teams (Security Bureau)

HCAL 598/2018

[2020] HKCFI 1896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 598 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 of the decision of Torture Claims Appeal Board dated 6 January 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 39-year-old national of Bangladesh who entered Hong Kong illegally in about mid-March 2007 and was arrested by police on 24 April 2008.  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 the political party Bangladesh Nationalist Party (“BNP”) for refusing to rejoin the party or to pay them extortion money.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Nishi Boira, District Sirajganj, Bangladesh.  He received no formal schooling, and in 2003 became a supporter of the local branch of BNP headed by a fellow villager Shahin, but gradually became disillusioned with the anti-social activities of those supporters which included extorting money from the local businesses and fellow villagers that nine months later he left the party, and found a job working as a salesman in an electrical shop.

3.However, several days later Shahin came with his men to the shop to ask the Applicant to re-join the party, and when he refused, Shahin started to demand money from him, threatening to beat him or to close down his shop or to make false charges against him to the police unless he paid him money.

4.One day in 2004 the Applicant was arrested by the police over a false charge made against him by Shahin and was detained in the police station for several days until his elder brother’s friend paid a bribe for his release.

5.After his release the Applicant kept a low profile and tried to avoid Shahin in the village, but on one occasion in 2004 when Shahin was unable to find him in his home, Shahin lost his temper with the Applicant’s father by hitting him with a wooden stick that his father was later had to be taken to the hospital for medical treatment to his head.

6.After the incident the Applicant was advised by his father to leave the village for his own safety, and so he fled to Kushtia District to take shelter in his elder brother’s home, but later when he heard that Shahin and his men were still looking for him everywhere, he decided that it was no longer safe to remain in Bangladesh, and so on 8 March 2007 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 3 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 19 January 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, 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 Shahin or his men 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 was no evidence of any real intention on their part to harm or kill him other than to extort money from him, that after all these years it is doubtful that they would still have any adverse interest in him, that it was a criminal offence to extort money from him that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information 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 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience 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 Shahin or his men to locate him.

9.On 28 January 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 18 December 2015 before the Board during which he gave oral evidence and answered questions put to him by the adjudicator for the Board.  On 6 January 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found no evidence that the Applicant had ever suffered any ill-treatments at the hands of Shahin whose verbal threats were merely to extort money from him rather than anything to do with political motive or persecution, and that in the absence of any official involvement that state/police protection would be available to the Applicant if needed upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.    

11.On the same day of 6 January 2017 the Director on his own initiative in writing invited the Applicant 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”), and in the absence of any response from him that the Director by a Notice of Further Decision dated 23 January 2017 again rejected his claim under BOR 2 risk. 

12.The Applicant did not appeal to the Board against that Further Decision of the Director, and instead on 10 April 2018 filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would still be in danger if refouled to his home country but without putting forward any proper or valid ground for his intended challenge, nor did he request any oral hearing for his application.  

13.By then the Applicant was also seriously out of time with his application, as Order 53 rule 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 him to file his Form 86 regarding the Board’s decision fell on 6 April 2017, the Applicant was therefore more than one year 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 merit of the intended application; and (iv) any prejudice to the putative respondent and to public administration: 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 more than one year must be considered as very substantial and excessive, for which he did not appear to have given any reason or explanation other than in his Form 86 when he asserted that he was given the Board’s decision on 6 January 2018 but without providing any further details or particulars for such claim, let alone any supporting documentary evidence, while the record shows that the decision was sent by the Board on 6 January 2017 to his same address as stated in his Notice of Appeal which had never been returned through undelivered post.  As such and in the premises I am not satisfied that he has provided any good or valid reason for his such serious delay.

16.As for the merit, if any, of his intended application, as noted above he also failed to put forward any proper ground for his intended challenge, 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 basis or merit for him to challenge the finding of the Board.        

17.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.

18.Furthermore, 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, 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.

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.

Dated the 11^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