BISWAS SHONKOR KUMAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 831/2018

[2019] HKCFI 1346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 831 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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 38-year-old national of Bangladesh who entered Hong Kong illegally on 8 October 2015 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by 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 into a Hindu family in Bangladesh where the majority of the population were Muslim and the applicant felt being discriminated in his neighbourhood. After leaving school he helped out in his father’s jewellery shop and in 2005 became a supporter of the then ruling political party Bangladesh Nationalist Party (“BNP”) relying on their help and protection.

3.  However, in 2008 AL won the general election and became the ruling party.  One day in 2013 a group of AL supporters came into his father’s shop and threatened his family not to practice Hindu or to run their business in the neighbourhood or else they would be killed.

4.  Thereafter the same group of AL supporters would from time to time return to his father’s shop to demand for extortion money, and to avoid trouble the applicant and his father would try their best to pay.  Eventually the applicant became concerned for his own safety in the neighbourhood that he left his home town to stay at his aunt’s place in Kushtia where he remained for six months without incidents, but when he heard that the AL supporters had found out where he was, he then left for Dhaka to take shelter at his cousin’s home.

5.  The applicant stayed in Dhaka without incidents until early 2015 when he was informed by his family that someone had set fire to their family house and that his family therefore had to move elsewhere, the applicant felt that it was no longer safe to remain in Bangladesh, and so in February 2015 he left for India until he ran out of money and returned to Dhaka where he spent most of the time hiding until 5 October 2015 when he with his agent’s help departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 1 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 21 June 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 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 he will face any personal real or foreseeable risk of harm from his perceived enemies upon his return to Bangladesh due to the absence or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that the arson against his family house was carried out by the AL people, 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 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 adult with work experience to move to other part of Bangladesh away from his home district in large cities such as Chittagong or Dhaka where he had stayed before for more than two years without incidents and where it would be difficult if not impossible for those AL people to locate him.

8.  On 4 July 2017 the applicant 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 28 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found those incidents of threats from the AL supporters were merely attempts to extort money from the applicant’s family and not politically motivated or with state involvement that state or police protection would be available to the applicant, and that if those threats still exist after all these years that it would not be unreasonable for the applicant to relocate to other part of Bangladesh away from his home town where it would be difficult if not impossible for those AL people to locate him.   

10.  On 14 May 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 in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedurally unfair in the Board’s failure to adopt a structured approach to assess his credibility in its decision;

(2)  failure to adopt a reasoned and considered approach in evaluating the material matters in assessing his credibility;

(3)  failure to apply high standards of fairness in assessing his claim;

(4)  that both the Director and the Board had misdirected on the law in significantly relying on source of news not officially recognized and that the decision to dismiss his appeal was unreasonable and procedurally unfair; and

(5)  failure on the part of the adjudicator to take proper account that the applicant had limited skill in English in dismissing his appeal.  

11.  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 Board had erred in their decisions, or in what way did the Board fail to take a proper or structured approach in assessing his credibility, or how did the Director or the Board fail to apply high standards of fairness in assessing his claim, or what source of news or COI relied by the Director or the Board were not officially recognized. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any of them reasonably arguable for his intended challenge.

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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  The applicant’s claim was rejected by the Board for the thorough and detailed analysis and reasoning as set out in paragraphs 36 – 44 of its decision and with the benefit of hearing him in evidence and answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law 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.  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.

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