TABAROK ULLAH v. DIRECTOR OF IMMIGRATION

HCAL 277/2018

[2020] HKCFI 476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 277 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 39-year-old national of Bangladesh who entered Hong Kong illegally on 1 March 2007 and was arrested by police on 26 November 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by a group of local supporters of rival political party Awami League (“AL”).  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Khulna, Bangladesh.  After leaving school he became a supporter of the Bangladesh Nationalist Party (“BNP”).  One day in 2006 he was approached by some of the AL supporters in his home village to join their party but when he declined, he was warned that there would be serious consequences.

3.  One night in 2007 while he was hanging out with his friends in the village, he saw from a distance the same group of AL supporters beating another man.  Later when he heard that someone had died in the village, he suspected it was the same person whom he earlier witnessed being beaten by the AL supporters.

4.  When he returned home he was told by his father that some men had come looking for him. After he informed his father about the beating which he had earlier witnessed, his father suspected that the AL people were going after him, and on his advice the Applicant fled to Dhaka to take shelter at his friend’s place, but when he was later told by his father that the AL people were still looking for him everywhere, the Applicant decided that it was no longer safe to remain in Bangladesh, and so he departed on 26 February 2007 for China,and from there he later sneaked into Hong Kong and raised his torture claim after his arrest by the police, and upon the commencement of the Unified Screening Mechanism, his torture claim was taken as a non-refoulement claim for which he later completed a Supplementary Claim Form (“SCF”) on 1 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 10 February 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 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those AL people upon his return to Bangladesh as low due to the absence or low intensity and frequency of past ill-treatment from them, that there was no evidence that he did in fact witness a murder committed by those AL people that would cause them to go after him, that in any event it was doubtful that they would still have any adverse interest in him after all these years, that in the absence of any official involvement that state or police protection would be available to him 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 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other area of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those AL people to locate him.

7.  By a Notice of Further Decision dated 16 May 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation for him to submit any additional facts which 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”).

8.  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 24 February 2015, for which the Board decided that it was not necessary to conduct any oral hearing as it did not intend to take any issue with the facts raised by the Applicant or with the law involved.  On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board accepted the Applicant’s case on the facts raised by him,but found in the absence of any harm or violence that he had ever been subjected to that there was no substantial ground for believing that there would be any risk of harm to him upon his return to Bangladesh, and that in any event that with the availability of state/police protection and the options of reasonable internal relocation to other parts of Bangladesh that his claim failed on all applicable grounds.

10.  On 22 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date and supplemented by a letter of 21 August 2018 he put forward the following grounds for his intended challenge:

(1) that he was uneducated and that no lawyer was provided for his claim;

(2) that the Board decided on his claim based on assumptions;

(3) that in the absence of evidence the Board was wrong to infer that he did not have a case;

(4) that the Board erred in assessing that the level of risk of harm to him upon his return to Bangladesh as low; and

(5) that he never received the letter from the Director inviting him to submit additional facts and grounds relevant to BOR 2 risk and hence it was unfair to reject his claim under BOR 2 risk just based on the COI and the facts previously submitted by him.

11.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14,Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

12.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and in his appeal to the Board his grounds and arguments for his claim remained essentially the same as before as stated in his SCF, and with no issue as to his facts or the law taken by the Board, I do not find anything amiss arising from the lack of legal representation in his appeal before the Board, and I do not think this ground is reasonably arguable.

13.  Regarding his complaints under Grounds (2), (3) and (4), they were just some broad and vague assertions of the Applicant without any particulars or specifics or elaborations,whilst the findings of the Board were clearly based on the facts put before it and not on assumptions as alleged, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any of those grounds reasonably arguable either.

14.  As for the remaining Ground (5) in which he complained of not receiving the letter from the Director to submit additional facts relevant to his BOR 2 risk and that it was unfair for his such claim to be rejected based on the COI and the facts previously submitted by him, in the absence of any evidence that the Director’s letter indeed failed to reach him through his reported address, when even in his application now before me that he did not submit any further or additional facts which may be relevant to BOR 2 risk, and given the nature of his claim based on his own case that BOR 2 risk simply did not engage, the Director and the Board were in my judgment entitled to reject his claim under BOR 2 risk based on the facts previously relied on by him and on the COI available before them, and I do not find any basis or merits in this complaint of the Applicant.

15.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  Furthermore, the fact is that it has been established by both the Director and the Board in their decisions 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.

17.  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.

18.  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