ISLAM NAZRUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2399/2019

[2021] HKCFI 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2399 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Bangladesh who entered Hong Kong illegally on 21 March 2007 and was arrested by police on the same day. 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 the local supporters of rival political party Awami League (“AL”), and after his torture claim was rejected, he then raised a non-refoulement claim for protection on the same basis. He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Village Bajnab, District Narsingdi, Bangladesh. After leaving school he worked as a mechanic and also as a farmer in his home village, and became a supporter of the political party Bangladesh Nationalist Party (“BNP”) but without holding any official post in the party.

3.  In 2006 during a local election in his home district, he and his fellow BNP supporters came into conflict with the local AL supporters during which threats were made against him, and after being attacked on two occasions for which he suffered injuries and required medical treatments, the Applicant became fearful for his life, and so on 15 March 2007 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and raised his torture claim and then non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 22 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 31 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

5.  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 his perceived fear of harm form those local AL supporters is real and foreseeable upon his return to Bangladesh 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 the AL people given that he was merely a supporter without holding any official post in BNP, that in any event after all these years it is doubtful that they would still have any interest in him, that in the absence of any official involvement that state 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 157 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 Dhaka or Chittagong where it would be difficult if not impossible for those local AL supporters to locate him.   

6.  On 13 August 2018 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 June 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 12 August 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board accepted that the Applicant may have come into conflicts with the supporters of rival AL but found no reason to believe that they would still have any interest in him after all these years, and that in any event with state/police protection available to him upon his return to Bangladesh as well as the option of reasonable internal relocation for him to move safely to other part of Bangladesh away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

8.  On 20 August 2019 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 he put forward the following grounds for his intended challenge:

 (1)  That he was not given legal representation for his appeal before the Board;

 (2)  That he was unable to read or understand the documents in the hearing bundle for his appeal before the Board;

 (3)  That he was not given his hearing bundle with sufficient time for him to prepare for his appeal before the Board;

 (4)  That the Board failed to give reasons in its decision for rejecting his claim; and

 (5)  That the interpreter was not a good interpreter.   

9.  For his complaints under Grounds (1) and (2) of not being provided legal representation in his appeal before the Board as he cannot read or understand English, the Court of Appeal has already held that neither the high standard 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 367, and Re Zafar Muazam [2018] HKCA 176.

10.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator with the assistance of an interpreter without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think these grounds are reasonably arguable.

11.  As for his complaint under Ground (3) of not being provided with the hearing bundle earlier before his appeal hearing before the Board, as he should by then be well familiar with most of the documents in the bundle such as his SCF which was completed on his instructions to his legal representation from DLS, and as noted above he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue with the hearing bundle or requested for further time to enable him to better prepare for his appeal. As such I do not find this ground of the Applicant reasonably arguable for his intended challenge.

12.  Regarding his complaint in Ground (4) of no reasons given by the Board for rejecting his claim, it is plainly and factually wrong in this assertion of the Applicant, as the Board clearly did in its decision from paragraphs 55 to 80 properly and carefully analyze and discuss the evidence and materials in respect of the Applicant’s claim before arriving at its reasons and conclusion. As such there is simply no basis or merits in this complaint of the Applicant.

13.  As for his bare assertion under Ground (5) that the interpreter was not a good interpreter, in the absence of any particulars or specific or elaboration from him as to how it was so, and as he never raised any issue over the interpreter during his appeal hearing, I again do not find any merits in this complaint of his either.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them 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.

15.  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.     

16.  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.

17.  Furthermore, the Applicant on 26 February 2021 filed an affirmation to request to withdraw his application as he stated that his “problem is solved in Bangladesh” and that he wants to return to his home country as soon as possible.

18.  In the premises, and for these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that the basis of his claim no longer exists, I accordingly accede to his request and dismiss 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