Rahman Mohammad Sayadur v. Torture Claims Appeal Board

HCAL 1261/2021

[2021] HKCFI 3722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1261 of 2021

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 the Applicant in open court;

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 27 February 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 27-year-old national of Bangladesh who arrived in Hong Kong on 4 March 2014 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by members of the student wing of the political party Awami League (“AL”) in his college as he was a member of their rival student wing of 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 Madhypara, Brahman Baria, Bangladesh.  While in college he supported BNP by joining their student wing Chatra Dal (“CD”) and regularly attending their meetings and rallies at school, and during which he and his fellow CD student members would come into conflicts with those members of AL’s student wing Chatra League (“CL”), and after several such violent confrontations with them when the Applicant and some of his fellow CD students were attacked and beaten, and when his family later heard that the AL people were looking for him, the Applicant was advised to leave college and to take shelter in his aunt’s place in neighboring Village Sabaspur, and he then fled to Dhaka, and from there he departed Bangladesh on 1 March 2014 for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

3.By a Notice of Decision dated 17 June 2014 the Director of Immigration (“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”).

4.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 the CL members or AL people or the police upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that his problems with the CL members were minor and common amongst conflicts between students in college over their political issues, that after so many years since he had left college that there is no reason for the CL members or the AL people to have any further interest in him, that there is no reliable evidence of any police’s interest in him other than some hearsay from a friend and the fact that he was able to leave the country without problem, that in any event 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 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man 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.

5.By a Notice of Further Decision dated 11 October 2017 the Director also rejected the Applicant’s claim of any of his absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) being violated upon his return to Bangladesh upon finding that he had failed to establish a personal and real risk of his such right being violated as alleged.

6.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board”) against the earlier decision of the Director, the notice of appeal which was filed on 30 June 2014, and for which he attended 2 oral hearings on 28 January 2015 and 18 March 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 27 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

7.In its decision the Board found no evidence of any further political involvement by the Applicant in either CD or BNP since he left college and the country after all these years that there is no reason why there would still be any adverse interest from anyone in him, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

8.On 8 September 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward only one vague and broad assertion that the decision was not fair or reasonable as required by the Wednesbury test that the right to life is protected from extra-judicial killings that he may face if deported to his home country but without any details or particulars or elaboration as to how such assertion applied in his case.

9.By then the Applicant was also seriously out of time 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 day when grounds for the application first arose unless the court considers that there is good reason for extending the period without which the application shall be made.

10.As the last day of the three-month period for him to file his Form 86 fell on 27 May 2018, the Applicant was therefore more than 3 years 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.

11.In the Applicant’s case, a delay of more than 3 years must be considered as extremely inordinate, for which he explained at the hearing of his application that he did not do anything after his receipt of the decision because he did not want to risk being arrested and deported from Hong Kong until his recent arrest by the police for undertaking unauthorized employment and was sentenced to prison for 15 months that when he decided to make his application he was by then seriously out of time.

12.The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered mail, and as it was his own decision not to take any steps in his challenge of the Board’s decision as required by the rules just so to avoid being arrested or deported from Hong Kong until recently, I do not find that he has provided any good reason for his serious delay with his application.      

13.As for the merits of his intended application, as noted above the Applicant has put forth just one vague and bare assertion without any details or particulars or elaboration as to why he considered that the decision was unfair or unreasonable, or in what way would extra-judicial killings be relevant to his case, nor was he able to do so or put forth any other proper ground for his intended challenge at the hearing of his application.  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 reasonably arguable basis for his intended challenge 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 Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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.

16.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.

17.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 10^th day of December 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