TAREK v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 57/2021 [2023] HKCFI 1975 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 57 OF 2021 BETWEEN Tarek Applicant and Torture Claims Appeal Board and Putative Respondent Director of Immigration Putative Interested Party 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: Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 April 2020 refused; and The application for leave to apply for Judicial Review dismissed. Observations for the Applicant: The Applicant is a 55-year-old national of Bangladesh who arrived in Hong Kong on 4 September 2006 as a visitor with permission to remain as such up to 18 September 2006 when he did not depart and instead overstayed, and was arrested by police almost 5 months later on 12 February 2007. 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 supporters of the political party Bangladesh Nationalist Party (“BNP”) as he supported their rival Awami League (“AL”) and/or arrested by the police over some false charges made by those BNP supporters against him. He was subsequently released on recognizance pending the determination of his claim. The Applicant was born and raised in Village Nilfa, District Gopalgonj, Bangladesh. After leaving school he worked in various jobs, got married and raised a family with 6 children in his home village, and supported AL regularly attended their local meetings and activities but without holding any official post in the party. In early 2005 some local BNP supporters started to approach him to invite him to join their party, but the Applicant always declined their invitation. One evening in April 2005 while he was on his way home, the Applicant was ambushed by some BNP supporters who took him forcefully at gun point to a river bank and threatened to kill him right there if he still refused to quit AL to join BNP, and only when the Applicant pretended to agree to do so that he was eventually released to return home. Thereafter the Applicant became fearful for his life that he left his home village for District Khulna, but later when he heard from his family that those BNP people had come looking for him as well as the local police over some false charges made by the BNP people against him, the Applicant moved to Dhaka, and on 6 August 2006 he departed Bangladesh for China, and from there he later travelled to Hong Kong where he subsequently overstayed, and after his arrest by the police almost 5 months later he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 26 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 29 August 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 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”). 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 local BNP supporters 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 there is no evidence of any real intention or reason of those local BNP supporters to seriously harm or kill him given that he was just an ordinary AL supporter without any official post in the party or for them to still have any adverse interest in him after all these years since he left the country, nor is there any evidence of any interest of the police in him given the fact that he was able to leave the country without any 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 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. On 8 September 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 19 and 23 December 2014 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 May 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision. In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from those local BNP supporters that caused him to leave his home country to come to Hong Kong, that there is no reliable evidence of any real intention of them to seriously harm or kill him, and that in any event 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 for him to move safely to other part 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. On 26 May 2015 the Applicant filed his Form 86 under HCAL 80/2015 for leave to apply for judicial review of the Board’s decision, for which he was subsequently legally represented on Legal Aid and put forward various grounds for his intended challenge and attended an oral hearing with counsel before Chung J, but which were all rejected by His Lordship on 17 March 2017 upon finding that none of them were reasonably arguable, and accordingly refused his leave application. Meanwhile on 29 December 2016 the Director on his own initiative invited the Applicant to submit additional facts which he might consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) being violated upon his return to Bangladesh, and in the absence of any response from him, the Director by a Notice of Further Decision dated 16 January 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Bangladesh. On 26 January 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, for which the Board did not hold any oral hearing and proceeded to deal with it in the absence of the Applicant and on paper, and on 2 April 2020 it dismissed the Applicant’s appeal upon finding no evidence of any real risk that the Applicant would be arbitrarily deprived of his life by anyone in contravention of BOR 2 if refouled to Bangladesh. On 14 January 2021 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given either in his Form or his supporting affirmation, nor did he request any oral hearing for his application. By then the Applicant was also 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 3 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. As the last day of the 3-month period for him to file his Form 86 fell on 2 July 2020, the Applicant was therefore more than 6 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. In the Applicant’s case, a delay of more than 6 months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day of 2 April 2020 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay. As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge, and that on the factual basis of even his own case that his claim clearly did not engage the BOR 2 Risk given the limited scope of the BOR 2 ground. 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 of the Board’s decision or any merits in his intended application. 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. 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 the Applicant’s 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. 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 BOR 2 Claim. Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as he no longer has any problem returning to his home country. In the premises, as I am for the given reasons 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 2nd day of August 2023 (Chung Lai Fan, Christine) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 2 August 2023 Tarek Applicant’s ref. no.: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2 August 2023 Torture Claims Appeal Board Putative Respondent’s ref. no.: BOR 77/17/1/54/B15; USM 200/14/9/27/B34 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 9001266/16 (Formerly QA T/C 1016/09, RBCZ 391/09) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ___________________________________________________________________________ Form CALL-1