HAQUE GAZIUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1425/2018

[2021] HKCFI 3458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1425 of 2018

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 50-year-old national of Bangladesh who entered Hong Kong illegally on 7 July 2014 and was arrested by police on the same day. 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 supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Jamaat-e-Islami Party (“Jamaat”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Manra, District Comilla, Bangladesh. After leaving school he worked as a tailor, and supported the Jamaat Party before going to work in Saudi Arabia in 1993.

3.  In 2006 he returned to Bangladesh to reside with his wife and children in Dhaka where he resumed his involvement in the Jamaat party, but on one occasion in early 2013 when he was attending a party meeting with his fellow Jamaat supporters, they were confronted by AL supporters who proceeded to attack them with wooden sticks during which the Applicant and his fellow Jamaat members suffered superficial injuries.

4.  Some weeks after the incident the Applicant heard that the AL people had made some false accusations to the police against him for setting fire to some vehicles in the street during that incident in Dhaka and that the police were looking for him, and so he fled Dhaka to return to his home village in Comilla, but later when he heard that the police and the AL people were still looking for him everywhere, and so he departed Bangladesh on 4 July 2014 for China, and from there he later sneaked into Hong Kong, and upon 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 19 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.  By a Notice of Decision dated 28 February 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 assessed the level of risk of harm from those AL supporters 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 that he had been specifically targeted by them given his lack of official position in the Jamaat party, that there is no evidence that the police were looking for him over any criminal offence and given the fact that he was able to leave the country without problem, 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 156 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 part of Bangladesh away from his home district in large cities such as Chittagong where it would be difficult if not impossible for him to be located.

7.  On 13 March 2017 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 24 May 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found no reliable evidence that the Applicant had faced any of his claimed fear of farm from the AL supporters or the police over any false charges, and of the latter given that he was able to leave the country without any problem, that if indeed he was being pursued by the police over any criminal offence his fleeing of his country would make him a fugitive of justice for which he would not be entitled to non-refoulement protection, that there is no evidence or reason for those AL people to specifically target him for harm given his lack of official position in the Jamaat party, that in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other area without any risk of being located by those AL supporters that his claim for non-refoulement protection failed on all applicable grounds.   

9.  On 19 July 2018 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, and in his supporting affirmation of the same date he just stated that the Board disregarded his dangerous situation but without any details or particulars as to how it did so or 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, while the way in which the Board raised issue with the credibility or reliability of his claim by questioning the reason why he had chosen to come to Hong Kong for protection and the way he sneaked into Hong Kong illegally but without putting such questions to the Applicant during the appeal hearing certainly appear to me improper and/or procedurally unfair, or that if they had indeed been put to the Applicant at the hearing, the decision did not explain at all or adequately why they were not accepted by the Board (see §§34 – 37 of the decision), but the Board did in my judgment correctly and independently find on the basis of the Applicant’s own case that there was no evidence or reason for those AL supporters to specifically target him for political reason given his lack of official position in the Jamaat party, and that from the relevant COI before the Board that it did also correctly find that state protection and reasonable internal relocation would be available to the Applicant upon his return to Bangladesh to negate any such risk, and that if indeed he is being pursued by the police for any criminal offence brought against him prior to his departure, there is a functional legal system in place in Bangladesh to ensure that he would be entitled to due process and with proper legal representation to defend such charges. In the circumstances, notwithstanding the flaws in the Board’s assessment of the Applicant’s credibility, I am not satisfied that there is any reasonably arguable basis to challenge the Board’s conclusion on the basis of its other correct findings as noted above.  

12.  The fact is that it has been established by both the Director and the Board in their respective decision 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. 

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 I accordingly refuse his leave application.

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