SALIM MOLLAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2012/2018

[2020] HKCFI 1226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2012 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Bangladesh who arrived in Hong Kong on 11 August 2006 with permission to remain as a visitor up to 25 August 2006 when he did not depart and instead overstayed and was arrested by police on 17 November 2009.  After he was referred to the Immigration Department for investigation, he raised torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by paternal uncle over some property dispute and/or by a bank for failing to repay his loan, and after his torture claim was rejected, he 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 Nitira, District Munshiganj, Bangladesh.  After leaving school he assisted his father in his metal recycling business in his shop which he had secured to a bank for a loan repayable by monthly instalments.

3.  His grandfather owned various properties which were all managed by the Applicant’s eldest uncle after he died, but which were all used for his uncle’s benefits without sharing with the Applicant’s father or other siblings, and as his uncle was a powerful and influential man in the village with political influence being a member of the ruling political party Awami League (“AL”), his father dared not do anything about his rightful share in his grandfather’s estate.

4.  In early 2006 the Applicant persuaded his father to exert his right in his grandfather’s estate by approaching his uncle to demand for a proper share of the grandfather’s properties, but their demand was simply ignored by his uncle.

5.  One day in April 2006, his uncle’s sons together with their followers came to the Applicant’s home when only the Applicant’s mother and brother were present, and started to accuse the Applicant’s father of making unreasonable demands of the grandfather’s estate, and proceeded to beat up the Applicant’s brother, and before they left, they warned that the Applicant’s family should stop making any further demand or else there would be more serious consequences.

6.  After the incident, the Applicant’s parents reported the matter to the local police, but were told to resolve their family issues amongst themselves.

7.  Several days later while the Applicant and his father were on the street, they were confronted by his uncle’s sons and their followers who scolded them for having gone to the police and warned them that they would be killed if they continued to make trouble to the uncle.

8.  For the next several weeks the Applicant and his family continued to receive threats from his uncle’s sons, and to avoid further threats and harassments from his uncle and his sons, the Applicant’s father sent him to stay at his aunt’s place in Dhaka where he stayed without further incidents, while the rest of his family moved to a neighbouring village in Kumira.

9.  However, when the Applicant heard that his uncle’s sons were still looking everywhere for him, and as his bank was also chasing after him for his loan repayments, he decided that it was no longer safe to remain in Bangladesh, and so on 11 August 2006 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police, he raised a torture claim on the basis of fear of harm form his uncle and his bank, and after it was rejected by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 19 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

10.  By a Notice of Decision dated 31 December 2015 the Director of Immigration (“the 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 the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

11.  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 his uncle or his bank creditor 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 that he had been pursued by his bank when the shop had already been foreclosed by the bank in repayment of the loan, while his father’s dispute with his uncle over his grandfather’s estate was a private family matter without 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 168 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 part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for his uncle to locate him.

12.  By a Notice of Further Decision dated 24 November 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non‑derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

13.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 11 January 2016, and for which he attended an oral hearing on 11 November 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board when he admitted that the outstanding bank loan had already been repaid by his father and therefore there is no longer any fear of any harm from the bank, leaving only that from his uncle.  On 14 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board accepted the Applicant’s claim of his father’s dispute with his uncle over his grandfather’s estate, but found that it was a private personal matter between them that should be resolved through legal means without affecting the Applicant, and that in any event in the absence of any official involvement that state protection as well as reasonable internal relocation within Bangladesh would be available for him to move safely to other areas away from his home district such as in Dhaka where he had stayed before without incidents and where he can safely re-establish himself without any risk of being located by his uncle or his sons that his claim for non-refoulement protection failed on all applicable grounds.    

15.  On 24 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)     procedural impropriety in that the decisions of both the Director and the Board are illegal as both committed errors of law in dismissing his non-refoulement claim and appeal respectively without requiring the Applicant to obtain relevant COI and instead made the assessment on their own COI;

(2)     irrationality in failing to consider the concept of extended state acquiescence regarding state involvement in the Applicant’s case;

(3)     failure to consider the Applicant’s fear and the supporting documents submitted by him that his claim is genuine and would face real risk upon refoulement; and

(4)     error/misdirection in law in their failure to consider the Applicant’s claim under BOR 3 risk which he would face risk from his enemies upon return, and instead only focused on that he only received very low torture and that his dispute with his uncle was a private matter without regard for the real risk that he would face from his enemies upon return to his home country. 

16.  These are however all just 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 Director or the Board had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to his claim, or how did they fail to consider his BOR 3 risk when it is clear from both of their decisions that his BOR 3 risk had been properly and adequately assessed.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

17.  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.

18.  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.     

19.  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.

20.  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