MOLLA MD SHANTO v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1962/2018

[2020] HKCFI 1718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1962 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 22-year-old national of Bangladesh who entered Hong Kong illegally on 11 February 2017 and surrendered to the Immigration Department on 13 March 2017 when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain 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 Village Bithimalda, Molla Bari, Tongibari District, Munshiganj, Bangladesh.  After leaving school he worked in a garment factory in Dhaka, and became a supporter of political party Bangladesh Nationalist Party (“BNP”) at the age of 10 or 11 years old, and actively assisted the party in transporting and delivering bombs, firearms and other weapons to supporters in the area as well as setting fire to public transportations and other activities for the party.

3.  One day in early 2016 he was approached by some AL members to carry out some illegal acts against certain BNP leaders, and when he refused, they beat him by punching and kicking all over his body.

4.  On another occasion in 2016 during general elections when he was participating in certain elections campaign for BNP with his fellow supporters, they were attacked by a group of AL supporters that he suffered various cuts and bruises that he was taken to the hospital for medical treatments.

5.  About one month later in one evening a group of AL supporters came to the Applicant’s home and beat him as well as his parents and siblings with hockey sticks that they all suffered bruises and cuts and were taken to the hospital for treatments and where his father was hospitalized for 2 months due to his serious injuries.

6.  Upon discharge from hospital the Applicant moved his family to Dhaka, but as he was still fearful for his life, he therefore departed Bangladesh in late January 2017 for China, and from there he later sneaked into Hong Kong, and upon his surrender to the Immigration Department he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 18 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 31 May 2018 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 Ordinance, Cap 383 (“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”).

8.  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 and substantial risk of him being harmed or killed by those AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that given that he was then a lowly teenage supporter with no official position in BNP that there is no reason for those AL supporters to target him or to continue to have any adverse interest in him, that 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 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 young man to move to other part of Bangladesh away from his home district in large cities such as Khulna where it would be difficult if not impossible for those AL supporters to locate him.

9.  On 8 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 29 August 2018 before the Board during which he however declined to give evidence or to answer any questions raised of his claim by the adjudicator for the Board.  On 12 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s claims of political involvements at his then age and as such a lowly supporter of BNP with no official position but caused such violent actions against him and his family from rival AL supporters in the absence of any oral clarification or explanation from him during his appeal hearing that his claims were considered as inherently incredible, illogical and implausible that it did not consider him as a witness of truth, and that in any event with reasonable internal relocation within Bangladesh available for the Applicant to move safely to other areas away from his home district without any risk of being located by those local AL supporters that his claim for non-refoulement protection failed on all applicable grounds.        

11.  On 18 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 put forward the following grounds for his intended challenge:

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

(2) that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) that the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim;

(4) that the Director failed to take into account that the Applicant was tortured at the behest of the state law enforcement agencies that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give enough weight to those listed COI which supported the Applicant’s aversions that the police in his home country would not be able to protect;

(6) that the director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law; and

(7) that the Director failed to consider the corruption and incompetency of the administration in his country is still a very serious problem of which various human rights organization reports had stated testament to the Applicant’s assertions which is a clear case of unfair attitude shown by the Director itself enough to render his decision void.  

12.  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 adjudicator had erred in their decisions, or in what way were their decisions unreasonable or unfair, or how did the adjudicator fail to give him sufficient time or opportunity to provide his evidence in support of his claim or appeal, or what relevancy was state acquiescence relevant to his claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way was the Director’s decision unreasonable in the scope of public law.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  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.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 21 – 24 of its decision in the absence of any evidence, clarification or explanation from him as to the many discrepancies and contradictions in his claims despite being invited to do so during his appeal hearing, 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.  

15.  Furthermore, 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.     

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.  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