LITU MIA v. RONALD CHEUNG, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 1278/2018

[2020] HKCFI 445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1278 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 40-year-old national of Bangladesh who entered Hong Kong illegally in October 2013 and was arrested by police on 14 November 2013.  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 a local leader of rival political party Awami League (“AL”) for failing to pay extortion money.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Ghashiara, District Magura,Bangladesh. After leaving school he sold cosmetic products in his own shop in the bazaar of his home village, and became a supporter of the political party Bangladesh Nationalist Party (“BNP”) regularly attended their rallies and meetings.

3.  In the village there was a local leader of AL by the name of MAS who would threaten other villagers to join his party, and if they refused, he would threaten to demand extort money from them. One day in 2012 MAS sent his followers to the Applicant’s shop to demand that he join AL or else he would have to pay large sums of extortion money,and when the Applicant pleaded for more time to come up with the money, the men warned him that they would return in a few days and if he still failed to pay, he would be killed.

4.  As the Applicant was still unable to come up with the money, MAS’s followers would continue to harass and threaten him but had never physically harmed or attacked him.  By early 2013 the Applicant found himself unable to put up with such threats and harassments,and when the local police were unable to help, he decided that it was no longer safe to remain in Bangladesh, and so on 17 February 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 17 March 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under PartVIIC of the Immigration Ordinance, Cap115 (“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”).

6.  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 MAS or his men upon his return to Bangladesh due to the absence or low intensity and frequency of past ill-treatment from them, 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 140,000 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 Dhaka where it would be difficult if not impossible for MAS or his men to locate him.

7.  On 29 March 2017 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 13 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found such serious inconsistencies and exaggerations in the Applicant’s evidence of his claim that there are no substantial grounds for believing that he will be harmed or killed by MAS or his men upon his return to Bangladesh, and that in any event that it was a localized threat that the Applicant can safely relocate to other part of Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.   

9.  On 4 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 for the adjudicator to wrongfully take 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 risk of torture in 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 himself 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 his 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.  

10.  These are however mostly 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 what relevancy was state acquiescence to his claim, 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.

11.  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.

12.  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.

13.  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 decision 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.

14.  Essentially the Applicant’s claim was rejected by the Board on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 88 – 120 of its decision with the benefit of hearing him in evidence and in answer 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 in his process before the Board or in itsdecision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.  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