Rahman Mohammad Ayubur v. Torture Claims Appeal Board

HCAL 1209/2019

[2023] HKCFI 1297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1209 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court / the Applicant being absent 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 20 October 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 48-year-old national of Bangladesh who entered Hong Kong illegally on 1 May 2013 and was arrested by police some 6 months later on 1 November 2013 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim to the Immigration Department 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 Sonargaon, District Brahmanbaria, Bangladesh. After leaving school he worked in various jobs, got married and raised a family with a son, and supported BNP regularly attended their local meetings and activities without holding any official post in the party.

3.In 1996 he went to Malaysia to work as a welder, returning to Bangladesh more than 10 years later in 2007 when he started a fish farm business in his home village and resumed his support for BNP, but a local AL leader after winning the election as the chairman of the Koshba Sub-district Council would together with his followers often come to the Applicant’s fish farm to take his fish products by force, and would threaten and beat up the Applicant or other members of his family when they tried to stop them.

4.To avoid their threats and harassments, the Applicant in February 2013 moved his family to Dhaka, and on 21 March 2013 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and after he was arrested by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 April 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 31 May 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 found no substantial grounds for believing that the claimed risk of harm or killed by those local AL supporters as real and foreseeable upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that that there is no evidence of any real intention of them to seriously harm or kill the Applicant or any reason for them to specifically target him given that he was just an ordinary BNP supporter without any official post in the party, 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 156 million people spread across a vast territory of more than 140,000 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 the country away from his home district in large cities such as Dhaka where it would be difficult if not impossible for anyone to locate him.

7.On 8 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not find it necessary to hold any oral hearing and proceeded to deal with the appeal in the Applicant’s absence and on papers. On 20 October 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found no proper basis to suggest that the Applicant would face any real risk of harm from those local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that they were merely trying to steal fish from his fish farm but as it no longer existed after the Applicant left the country that there is no reason for them to have any further adverse interest in him, that in any event in the absence of any official involvement that state or police protection would be available to him to negate any such risk as well as reasonable internal relocation for him to move safely to other part of the country away from his home district in large cities such as Dhaka where his wife and family have been residing without any incidents or any risk of him being located by those AL supporters that his claim for non-refoulement protection failed on all applicable grounds.

9.On 6 May 2019 the Applicant filed his 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 or in his supporting affirmation of the same date, nor did he request any oral hearing for his application.

10.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 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.

11.As the last day of the 3 month-period for him to file his Form 86 fell on 20 January 2018, the Applicant was therefore more than 15 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.

12.In the Applicant’s case, a delay of more than 15 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as noted above nor did he request any oral hearing for his application.

13.As the record shows that the Board’s decision was sent on the same day of 20 October 2017 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any explanation from the Applicant, I am unable to see any valid reason or justification for his such serious delay with his application.

14.As for the merits, if any, of his intended application, as noted above that the Applicant also failed to put forward any proper ground in his Form or affirmation for his intended challenge, nor did he request any hearing for 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 merits in his intended application either.

15.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.

16.In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision 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.

17.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.

18.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved and that he just wants to go back to his home in Bangladesh.

19.In the premises, 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 the absence of any good reason for his serious delay and upon his latest confirmation that it is now safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 17^th day of May 2023

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