Case Detail

HCAL 768/2021

[2024] HKCFI 834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 768 OF 2021

_____________

BETWEEN
	ARIF	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD	Putative
		Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative
		Interested Party

_____________

Before:

Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:	14 March 2024
Date of Decision:	28 March 2024

________________

D E C I S I O N

________________

1. On 19 October 2023 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding that none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2. The Applicant now by a summons issued on 20 December 2023 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 2 November 2023, and hence he was more than 1 ½ months late with his intended appeal.

3. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346.

4. In the Applicant’s case, a delay of 1 ½ months must be considered as substantial and inordinate, for which he explained at the hearing of his summons that he has since July 2023 been detained by the Immigration Department at Tai Tam Gap Correctional Institution and had had difficulty getting money to pay for his intended appeal which accounted for the delay.

5. The court record shows that the decision was sent on the same day of 19 October 2023 to the Applicant’s detention at Tai Tam Gap Correctional Institution without being returned through undelivered post, and while accepting that there would be various inconveniences or difficulties in seeking assistance for his intended appeal while in detention, I am not satisfied that they could justify his such serious delay.

6. More importantly, the Applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation other than just some bare assertions that he was not given any opportunity to produce supporting documents and that the Court just relied on the Board’s decision without much consideration of his claim but without providing any relevant details or particulars or elaboration to corroborate his such assertions, nor was he able to do so at the hearing of his summons. As such, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

7. In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

(Bruno Chan)
Deputy High Court Judge

The Applicant appeared in person

HCAL 768/2021

[2023] HKCFI 2707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 768 OF 2021

BETWEEN
	Arif	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally on 21 November 2019 and was arrested by police some 5 months later on 27 April 2020. 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 the local Muslims for converting his religion from Islam to Christianity. He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised as a Muslim in Village Vatra, Sonotia Bazar, Sarkerbari, Jamalpur, Bangladesh. After leaving school he married his wife and raised a family with a son in his home village, and in 2008 went to Malaysia to work in an engineering shop.

3. In 2015 while in Malaysia he met online another Bangladeshi woman who was a Christian and who was working as a foreign domestic helper in Hong Kong, and with whom he eventually felt in love and proposed to marry her as his second wife, and when she agreed, and in order to please her, the Applicant returned to Bangladesh in 2019 to learn about the Christian faith by attending a church in Jessore District, and was eventually baptized and became a Christian.

4. However, later when his conversion was discovered by the Islamic leaders in his home district, he was regarded as a traitor and became a target of death threats from the local Muslims, and when he became fearful for his life, he fled to Dhaka and on 27 October 2019 departed Bangladesh for China, and from there he later sneaked into Hong Kong, and after 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 16 October 2020 and attended screening interview before the Immigration Department with legal representation.

5. By a Notice of Decision dated 28 December 2020 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 the local Muslims 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 of any real intention of them to seriously harm or kill him, 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 162 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 Chittagong where it would be difficult if not impossible for anyone to locate him.

7. On 31 December 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 April 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 May 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8. In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence of his alleged conversion of his religion from Islam to Christianity as wholly unreliable and incredible when he gave contradicting and conflicting versions of different accounts of events said to have occurred in Bangladesh and was unable to even name the church or the priest for his baptize or anything about the Christian faith that it considered him not a witness of truth upon whose evidence reliance could be placed, that his credibility was further undermined by his failure to raise his claim when he first arrived in Hong Kong and only did so until more than 5 months later and only after he was arrested by police, and concluded that he had fabricated such claim so as to seek non-refoulement protection that it rejected his claim of any fear of harm from Muslims for religious reason, and that in any event even if such claim were true that according to relevant COI and 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.

9. On 26 May 2021 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 to which he just attached a copy of the decision without putting forth any proper ground for his intended challenge, nor was he able to do so 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.

10. 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.

11. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 49 – 68 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

12. 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 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.

13. 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.

14. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 19^th day of October 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 19 October 2023 Arif 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 19 October 2023 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 17504/20/12/63/B2195 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 692/20 (formerly RBCZ/10575/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

ARIF v. TORTURE CLAIMS APPEAL BOARD

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	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;