KHAN ABU SAID v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 464/2018

[2019] HKCFI 1741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 464 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 27-year-old national of Bangladesh who entered Hong Kong illegally on 17 December 2013, and surrendered to the Immigration Department on 13 January 2014 when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain members of the political parties Chatra League (“CL”) and Bangladesh Nationalist Party (“BNP”) for refusing to join their parties.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Boro Kalia, District Narail, Bangladesh.  In 2010 he entered Kalia College where he met the student leaders of CL and BNP who tried to persuade him to join their parties but the applicant always declined their invitation as he was not interested in politics.

3.  Soon thereafter some of the student members and supporters of CL and BNP started to harass and even threaten the applicant of the consequences of refusing to join their parties.  One day in March 2013 he was confronted by these supporters in the village and was beaten by them with iron pipes that he lost consciousness.  He was subsequently taken to a doctor for medical treatments to the bruises and swellings received from the attack.

4.  After the attack the applicant did not report the matter to the police as he was afraid of reprisals from those supporters, but one day in April 2013 he was again attacked by several unknown men with iron pipes until they were intervened by passers-by, and again the applicant was taken to the local clinic for medical treatments.

5.  Fearing of further attacks the applicant fled to Dhaka to take shelter at a friend’s place for several months without further incidents.  He then moved to his uncle’s place in Narayanganj, but later in September 2013 when he saw some of his attackers in the vicinity, he felt it was no longer safe to remain in Bangladesh, and so on 15 December 2013 he departed for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 23 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 29 November 2016 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”).

7.  In his decision the Director took into account 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 those members of CL or BNP upon his return to Bangladesh, as their intention was to press him to join their parties with no real desire to seriously harm him, that it is unlikely that after all these years that they would still have any interest in him, 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 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to other part of Bangladesh away from his home district in large cities such as Dhaka, Chittagong or Sylhet where it would be difficult if not impossible for those CL or BNP members to locate him.

8.  The applicant then filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 9 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the applicant to be a poor witness and that his evidence generally vague and lacking in appropriate details, with a general reluctance to provide any answer or clarifications to questions raised by the adjudicator as to his claim that it amounts to little more than a series of bold assertions that are virtually devoid of surrounding context or detail unsupported by any objective evidence, and concluded that not even the centerpiece of his claim can be regarded as reliable, that he had fabricated his claim to create a basis for his application for non-refoulement, and that his claim therefore failed on all applicable grounds.

10.  On 21 March 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 put forth the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into account that right to life must be protected from extra- judicial killings which the applicant may face if deported to Bangladesh; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence in support of his claim as well as his appeal.  

11.  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 Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his claim, or in what way did the adjudicator fail to give him sufficient time or opportunity to produce evidence in support of his claim or appeal when he never raised any such issue at his appeal hearing. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them or that they are reasonably arguable for his intended application.

12.  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 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 Re Litoun Mounsy [2018] HKCA 537.

13.  In the applicant’s case, the Board rejected his claim based on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in §§58 – 79 of its decision after having had the benefit of hearing him in evidence and his answers to questions put to him at his appeal hearing, and in the absence of any legal error or procedural unfairness being clearly and properly shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

14.  Furthermore, the fact that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15.  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.

16.  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