Madbar Akter v. Torture Claims Appeal Board

HCAL 1656/2020

[2021] HKCFI 2859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1656 of 2020

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 35-year-old national of Bangladesh who entered Hong Kong illegally on 16 October 2015 and was arrested by police on the same 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 certain local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Talukder Kandi, District Madaripur, Bangladesh. After leaving school he ran a garment shop in Dhaka, and followed his family’s tradition to become a BNP supporter.

3.However, after AL again won the 2014 general election, some AL supporters started to come to the Applicant’s shop to demand him to join their party or to pay them protection money, and to avoid their threats and harassments, the Applicant had to close his shop 6 months later.

4.Still the AL people continued to harass him and other BNP supporters, and one day after he was assaulted by those AL people on the street with hockey sticks that he suffered injuries and was taken to the hospital for medical treatments, the Applicant fled to other cities, but when he heard that those AL people were still looking for him everywhere, he felt it was no longer safe to remain in Bangladesh, and so on 11 October 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 20 September 2017 the Director of Immigration (“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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those AL people upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for the AL people to specifically target him for threats or harassments, 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 working experience to move to other part of Bangladesh away from his home district in large cities such as Chittagong where it would be difficult if not impossible for those AL people to locate him.

7.On 3 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be dealt with by the Board, the Applicant on 24 December 2019 applied in writing to the Board to withdraw his appeal, which was subsequently granted by the Board on 3 February 2020 that his appeal was accordingly withdrawn, and that the Board also confirmed the Director’s decision.

8.However, 6 months later on 14 August 2020 the Applicant filed a Form 86 in these proceedings 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 just attached a copy of the decision that he claims he wants to challenge but without putting forth any proper ground for his intended challenge.

9.By then the Applicant was also 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.

10.As the last day of the 3-month period for him to file his Form 86 fell on 3 May 2020, the Applicant was therefore more than 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 HKCA 393.

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

12.As for the merits, if any, of the intended application, as noted above the Applicant has not put forth any proper ground for his intended challenge, and as the Board withdrew his appeal at his request upon being satisfied that his application to withdraw his appeal had been freely sought, that there was good reason for his proposed withdrawal in that he considered it safe for him to return to Bangladesh, and that he understood the consequence of his withdrawal.

13.In fact, in the absence of any argument or evidence from the Applicant that his appeal had in fact been invalidly withdrawn and was thus a nullity, the Board would have been functus officio to deal with his appeal after accepting his request to withdraw it: see Re Ali Usman [2018] HKCA 955; and Re Das Purnima Rani [2019] HKCA 669. As such and in the absence of any error of law or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision or any merits in his intended application.   

14.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.

15.In the present case, even on the facts of the Applicant’s own case, the Director was in my judgment entitled to find 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.     

16.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 case.

17.Furthermore, the Applicant recently on 20 July 2021 filed an affirmation in these proceedings requesting to withdraw his application as his problem has been resolved and that he wants to return to his home country.

18.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that the basis for his non-refoulement claim no longer exists, I accede to his request and accordingly dismiss his leave application.

Dated the 23^rd day of September 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