Kazi Mohammad Masum v. Torture Claims Appeal Board

HCAL 3502/2019

[2021] HKCFI 410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3502 of 2019

BETWEEN

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 49-year-old national of Bangladesh who last arrived in Hong Kong on 3 January 2008 as a visitor with permission to stay up to 5 January 2008 when he did not depart and instead overstayed and was arrested by police on 6 August 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 gangsters for extortions and/or the local supporters of rival political party Awami League (“AL”). He was subsequently released on recognizance pending the determination of his claim.     

2.By a Notice of Decision dated 12 June 2015 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 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”).

3.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed risk of harm from his perceived enemies upon his return to Bangladesh would materialize due to the absence of or low intensity and frequency of past ill-treatment from them, that the intention of the local gangsters was to extort money from his business while there is simply no evidence of any threats from AL supporters other than the Applicant’s own groundless speculation, 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 166 million people spread across a vast territory of more than 147,000 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 his perceived enemies to locate him.

4.On 25 June 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 8 September 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision upon finding the credibility of his claim unreliable and that in any event with state/police protection available to him upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

5.On 6 April 2017 the Director on his own initiative 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 upon considering his additional submissions the Director by a Notice of Further Decision dated 10 August 2017 rejected the Applicant’s non-refoulement claim on BOR 2 risk.

6.The Applicant again lodged an appeal to the Board against this further decision of the Director, of which the Board did not find necessary to conduct another oral hearing and proceeded to deal with his appeal in his absence and on paper, and on 31 May 2019 it dismissed his appeal and confirmed the Director’s further decision. 

7.On 26 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

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

(4)  Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant; and

(5)  That the Board significantly relied on source of news not officially recognized or was simply hearsay or outdated resulting in its groundless speculations that it would be safe for him to return to his home country.

8.However, the Applicant was by then out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, 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.

9.As the last day of the three-month period for him to file his Form 86 fell on 31 August 2019, the Applicant was therefore almost 3 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: AW v Director of Immigration [2016] 2 HKC 393.

10.In the Applicant’s case, a delay of almost 3 months must be considered as substantial or excessive, for which he did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to his last reported address without being returned undelivered post, I do not see any good or valid reason for his delay.

11.As for the merits, if any, of his intended application, as can be seen from above, the Applicant’s grounds are all just broad and vague assertions without any details or particulars 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 Board unlawfully fetter its discretion or act in a procedurally unfair manner or that the decision was unreasonable or irrational in the public law sense, or what source of news relied upon by the Board were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any proper particulars or specifics by the Applicant. As such and in the absence of any error of law or irrationality 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 of them reasonably arguable for his intended challenge.      

12.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.

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their earlier decisions that the risk of harm in his 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.     

14.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.

15.Furthermore, the Applicant recently on 9 November 2020 filed an affirmation to request to withdraw his application as his problem in his home country is “now finished” and that he wants to return home. 

16.In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that the basis of his claim no longer exists, it would be appropriate that his leave application be dismissed rather than withdrawn.  Accordingly I dismiss his leave application.

Dated the 19^th day of February 2021.

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