MONIR HASAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 263/2018

[2019] HKCFI 936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 263 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 49-year-old national of Bangladesh who lasted entered Hong Kong illegally on 11 February 2014 and surrendered to the Immigration Department on 4 March 2014 when he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Bailabari, Muradnapar, District Comilla, Bangladesh.  After leaving school he joined the Bangladesh Nationalist Party (“BNP”), got married with two children, and worked in Malaysia for several years before returning to Bangladesh to run a business and became the local president of BNP in his home village.

3.  In 2006 after AL supporters had made false charges to the police against him, the applicant left Bangladesh for Hong Kong in December 2006 where he overstayed and raised a torture claim which he subsequently withdrew and was repatriated to Bangladesh in July 2008.

4.  Soon thereafter the applicant again became the local president of BNP, and in 2011 he ran for election for the chairman of the local district but lost to the AL candidate.  Thereafter some AL supporters started to harass the applicant by stealing his properties and taking his tractors and extorting money from him.

5.  One day in 2012 the applicant was confronted by those AL supporters in the market who proceeded to beat him by punching and kicking him until they were intervened by passers-by but for which the applicant did not report to the police.

6.  On another occasion in late 2012 the applicant was again assaulted by those AL supporters who also damaged his vehicle before he managed to flee from the scene, and in early 2013 those AL people came to his home to try to abduct him but he managed to escape and hid in his sister’s place in Village Chanla, and when he heard that those AL people were looking for him everywhere, he then fled to his cousin’s place in Sylhet, but as he was still fearful for his life, he therefore went to Dhaka and in October 2013 he left Bangladesh for China, and from there he subsequently sneaked into Hong Kong and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 18 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 26 January 2017 the Director of Immigration (“the 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 (“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”).

8.  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 the AL people upon his return to Bangladesh due to the absence or low intensity and frequency of past ill-treatment from them which did not attain the minimum level of severity under any of the applicable grounds, that in the absence of 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 work experience to move to other areas away from his home district such as Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for  those AL people to locate him.

9.  The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 16 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found much of the applicant’s evidence vague and lacking in detail, that during the course of his evidence that he was evasive whilst his answers to the adjudicator’s questions about the principal events that contributed to his decision to flee Bangladesh in particularly as to his account of what he claimed occurred in Sylhet and Dhaka to be just reactive to the adjudicator’s questions rather than a genuine attempt to detail his real experience, and that there were multiple material inconsistencies in his account that the Board rejected his claim as unreliable and found no real risk of harm to him from his claimed AL enemies if he were to be refouled to Bangladesh.

11.  On 21 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  procedural unfairness in that the Board’s decision to refuse the applicant’s appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness; and

(4)  procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant.  

12.  These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion, or how did the adjudicator act in a procedurally unfair manner or that its decision was unreasonable or irrational in the public law sense, or which COI relied on by the Board that were not officially recognized or were outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

14.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all being already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

15.  The fact is that the applicant’s claim was rejected by the Board essentially on his credibility upon hearing and evaluating his evidence as detailed in its assessment of his claim in paragraphs 66 to 87 of its decision in which no legal error or procedural unfairness has been identified by the applicant, and as has been repeatedly emphasized by the Court of Appeal, 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 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018[ HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

16.  In the present case the applicant has failed to properly identified any legal error or procedural unfairness or irrationality in the Board’s decision, and having proceeded to consider 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.

17.  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