RHAMAN ATIKUR v. MS DIONE DIMITRIADIS, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 1497/2018

[2020] HKCFI 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1497 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 24-year-old national of Bangladesh who entered Hong Kong illegally in October 2015 and later surrendered to the Immigration Department 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”) and/or by the family of his girlfriend who opposed their relationship for political reasons. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Asha, Mehendiganj of District Barisal, Bangladesh.  While at school in Dhaka, he became a supporter of the political partyBangladesh Nationalist Party (“BNP”) and joined its student wing organizing meetings and rallies in school.

3.  After rival party AL won the general election in January 2014, BNP organized a series of mass protests against AL and the government, and during one of such protests on 25 January 2015 in which the Applicant attended together with his fellow BNP supporters, they were attacked by AL supporters who threw bricks and stones at them that the Applicant was hit in his head and left knee that he fell and lost consciousness, and was subsequently taken to the local hospital for treatment.

4.  Upon his release from the hospital, the Applicant heard that the AL people had made false charges against him and his fellow supporters to the police, and so he fled to various places to hide from the police and the AL people.

5.  At about the same time the family of his girlfriend discovered their relationship, and as her family members were AL supporters, they therefore objected to their relationship and demanded that the Applicant stopped seeing his girlfriend, and one day in June 2015 he was ambushed by several men sent by his girlfriend’s family and was assaulted by them with wooden sticks, and before they left they warned him that if he did not stop seeing his girlfriend, he would be killed.

6.  As the Applicant felt that it was no longer safe to remain in Bangladesh, he thereforedeparted on 22August 2015 for China, and from there he later sneaked into Hong Kong, and when he heard that his girlfriend had committed suicide for which her family had blamed him and swore to kill him in revenge, he therefore raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 28 July 2017 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 Article2 (“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 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 or by the family of his girlfriend upon his return to Bangladesh due to the absence or low intensity and frequency of past ill-treatment from them, that the mass attacks by AL supporters against BNP supporters were common conflicts between rival political parties in Bangladesh and were not specifically targeted at the Applicant, that there was no reliable evidence that his girlfriend had indeed committed suicide or that her family were looking to take revenge against him other than some hearsay information and his own speculation, that in the absenceof 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 156 million people spread across a vast territory of more than 140,000 squarekilometers 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 or Chittagong where it would be difficult if not impossible for those AL people or the family of his girlfriend to locate him.

9.  On 2 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, and for which he attended an oral hearing on 14 May 2018 before the Board during which he gave evidence but declined to answer many of the questions raised of his claim by the Adjudicator for the Board despite being advised to do so to clarify the various inconsistencies and queries over his evidence.  On 26 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence of his claim of threats from the AL supporters or the family of his girlfriend together with his refusal to answer or clarify questions that were of concerns had seriously undermined his credibility that it concluded that he was not a witness of truth and rejected his claim of fear of harm upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 30 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) misdirection in law by the Adjudicator by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there would be a risk of torture in the future;    

(2) procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5) irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in her decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

12.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  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.  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, and theApplicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation,whilst his NCF was completed on his own instructions with legal assistance, and that at hisoral hearing he never raised any issue or requested the Adjudicator for further time to enablehim 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.

16.  Furthermore, the Applicant’s claim was rejected by the Board essentially on its adverse finding on his credibility for the thorough and detailed analysis set out in paragraphs 55 – 88 of its decision with the benefit of hearing him in oral testimony during his appeal hearing before the Board, 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 with sufficient particularity, 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 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 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