Anamul Mall v. Torture Claims Appeal Board

HCAL 155/2021

[2025] HKCFI 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 155 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 / 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 18 September 2020 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Bangladesh who entered Hong Kong illegally on 24 May 2008 and was arrested by police more than 1 year later on 22 June 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local villagers claiming to be supporters of the political party Bangladesh Nationalist Party (“BNP”) for refusing to pay extortion money to them, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Arappur, District Jhenaidah, Bangladesh. After leaving school he ran his own grocery store in his home village, got married and supported the political party Awami League (“AL”) regularly attended their local meetings and activities.

3.In about May 2006 some local villagers claiming to be BNP supporters started to come to his store demanding the Applicant to donate money to them for BNP, and when he refused, they then beat him and took away whatever cash and property that they could find in the store.

4.As such threats and harassments from those local BNP supporters persisted, by 2008 the Applicant found it no longer tolerable and departed Bangladesh sometime in May 2008 for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he raised his torture claim to the Immigration Department, and after it was rejected he then sought non-refoulement protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 15 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.Whilst released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 20 November 2012 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.                

6.By a Notice of Decision dated 16 November 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.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 there will be any real and substantial risk of him being harmed or killed by those villagers claiming to be BNP supporters after all those years since he left the country in 2008 that it is not accepted that there would still be any adverse interest in him, that in any event there is no reliable evidence of any real intention of them to seriously harm or kill him other than to extort money from him and 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 157 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas 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.

8.On 27 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled hearing with any explanation or any subsequent request for another hearing for his appeal that the Board proceeded to deal with his appeal in his absence and on paper based on the materials and information earlier submitted by him to the Director in support of his claim and available before the Board. On 18 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found even if the Applicant’s claim of being threatened and harassed by some local BNP supporters for extortion money were real that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 16 February 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness

(2)  That the Board unlawfully fettered its discretion by refusing his appeal on the ground that they did not satisfy the requirements;

(3)  That the Board failed to meet the greater care and duty owned to a self- represented claimant;

(4)  That the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(5)  That in dismissing the Applicant’s appeal there was no indication that the Adjudicator interacted with the facts of the Applicant’s claim or conducted any analysis of the supporting documents or turned his mind to the grounds under consideration being risk of violation of his right to life under BOR 2;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator had relied on cases which are outdated considering the dramatic changes with the lack of credible source of information had resulted in the making of groundless speculation.     

11.By then the Applicant was however 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 to extend the period within which the application shall be made.

12.As the last day of the three-month period for him to file his Form 86 fell on 18 December 2020, the Applicant was therefore almost 2 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.

13.In the Applicant’s case, a delay of almost 2 months must be considered as substantial and inordinate, for which he asserted in his affirmation that he did not receive the Board’s decision but without any further details or supporting evidence or explanation as to how he subsequently learnt of the decision that caused him to make his present application.

14.The record shows that the Board’s decision was sent on the same day of 18 September 2020 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any supporting evidence to corroborate his bare assertion, I am not satisfied that the Applicant has provided any good or valid reason for his substantial delay.      

15.As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just bare and vague assertions containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was BOR 2 risk to his claim when on the factual basis of even his own case that it was a money extortion harassing case between him and certain local thugs without any official involvement or political element. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

16.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.

17.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 his claim if real 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.                

18.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.

19.For all 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.

20.As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, I therefore direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in Bangladesh.

Dated the 11^th day of February 2025

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