MIAH MOHAMMED ARSHAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 295/2017

[2023] HKCFI 2717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 295 OF 2017

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 52-year-old national of Bangladesh who entered Hong Kong illegally on 7 November 2013 and on 14 January 2014 he surrendered to the Immigration Department for investigation and raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by some local supporters of the political party Awami League (“AL”) as he supported their rival Jamaat-e-Islami (“JEI”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Khaiyer, District Comilla, Bangladesh. After leaving school he worked as a carpenter in Saudi Arabia for 10 years before returning to his home village and ran his own grocery and stationery shop. He got married and had two children in Bangladesh.

3.  The Applicant became a member of JEI since about 2000 but he has never held any position in the party. He has attended their meetings and activities and participated in protests with his fellow JEI members. In 2007 and 2013, the Applicant was harassed at his shop on two occasions by large groups of local AL supporters who were disgruntled at his affiliated with JEI but otherwise caused no harm.

4.  As a result the Applicant became fearful for his life and to avoid further threats from those AL supporters, the Applicant fled to Dhaka where he stayed at his friend’s place for 6 months before departing Bangladesh on 27 October 2013 for China, and from there he later sneaked into Hong Kong, and upon his subsequent surrender to the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 December 2015 the Director of Immigration (“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 (“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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being seriously harmed or killed by those local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there was no evidence or reason for the AL supporters to specifically target the Applicant or to have any adverse interest in him given that he was just an ordinary JEI supporter without holding any official post in the party, that in any event in the absence of 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 1480,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Dhaka where he has stayed before without incidents or Chittagong where it would be difficult if not impossible for any AL supporters to locate him.

7.  On 25 January 2017 the Director on his own initiative in writing invited the Applicant to submit any 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 10 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Bangladesh.

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 12 January 2016, and for which he attended an oral hearing on 13 March 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found serious inconsistencies discrepancies in the Applicant’s evidence and contradictions and did not accept that those local AL supporters would still be interested in targeting the Applicant or have any adverse interest in him that it doubted his claim of fear of them for leaving his country to come to Hong Kong or that he is at risk of harm from any of them if refouled to his home country and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 15 June 2017 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and his supporting affirmation of the same date he put forth various grounds which can be summarized as follows 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 had acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant.

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible information had resulted in groundless speculations that it is safe for the Applicant to return to his home country;

(6)  That the Applicant was provided with the hearing bundle only 6 days before his appeal hearing before the Board with the majority of the documents in English that there was insufficient time for him to prepare for the hearing especially due to his limited skills in English and being unrepresented and without the means to obtain proper translations or interpretation of those documents which is procedurally unfair to the Applicant.

11.  At the leave application hearing, the Applicant has been asked to substantiate his grounds. All he said was whatever he had submitted were true.

12.  These are however all just vague and bare assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they would apply 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 acted in a procedurally unfair manner, or how did the Board fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what COI were unofficially recognized or were hearsays or outdated. They are all just bare assertions without any details or particulars or elaborations from the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13.  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.

14.  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.

15.  Even if it is true that the hearing bundle indeed came to him late as alleged, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, 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 either.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if real 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.

18.  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.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I 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