LITON MOHAMMAD MOFIDUL HAQE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1985/2018

[2019] HKCFI 2879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1985 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The Applicant’s Application for Leave to Apply for Judicial Review be reinstated; and

2.  Leave to apply for judicial review be refused.

Observations for the Applicant:

1. The Applicant is a 35-year-old national of Bangladesh who entered Hong Kong illegally on 30 March 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 a local supporter 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 Kushtia Sadar, Kushtia, Khulna, Bangladesh.  After leaving school he became a supporter of the political party Jamaat-e-Islami Party (“JIP”) by joining as a member, and in 2011 he became an assistant secretary of their local constituency regularly participating in their meetings and rallies.

3.  In his same neighbourhood, there was a neighbor named Akteruzzaman whom the Applicant would run into from time to time and whom he knew to be a supporter of AL,then the ruling party of Bangladesh.

4.  One day in March 2013 when the Applicant ran into Akteruzzaman who was with several friends, Akteruzzaman asked the Applicant to join AL, but when the Applicant refused, Akteruzzaman warned him of serious consequences before moving on with his friends.

5.  One day in December 2013 when the Applicant saw Akteruzzaman with his friends approaching him menacingly, he immediately ran away but was caught by Akteruzzaman and his friends who proceeded to beat him with wooden sticks until he fell onto the ground,and before he left Akteruzzaman warned the Applicant that next time he would be killed if he still refused to join AL.

6.  Afterwards the Applicant sought medical treatments for his leg injuries at a local clinic before returning home, but he did not report the assault to the police because he knew they were under AL’s influence.

7.  Several weeks later the Applicant again ran into Akteruzzaman and his friends who again beat him with wooden sticks but he managed to escape and hide in the market until they left. As the Applicant felt it was not safe to remain in his home town, he therefore fled to Dhaka to take shelter in a friend’s home without further incidents until February 2014 when he returned to his home district, but as he was still fearful of further attacks from Akteruzzaman, he again left for various places, and on 24 March 2015 he departed Bangladesh 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 protection, for which he completed a Non-refoulement Claim Form on 26 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 30 August 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”).

9.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Akteruzzaman upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from 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 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 Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for Akteruzzaman or his men to locate him.

10.  The Applicant then 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 15 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 14 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found serious discrepancies and inconsistencies in his account of events in Bangladesh between those given to the Director and those given before the Board that his credibility was found to be doubtful and unreliable, that he was also evasive in his answers to questions raised by the adjudicator of his claim during his appeal hearing that he was found to be an unreliable witness and that his claim was not accepted as credible, and that in any event with state protection and reasonable internal relocation available for him to move safely to other part of Bangladesh to avoid any risk of harm fromAkteruzzaman that his claim for non-refoulement protection failed on all applicable grounds. 

12.  On 19 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking review was given in his Form or in his supporting affirmation of the same date in which he merely attached copies of those documents from his hearing bundle for use in his appeal before the Board.

13.  However, before the Court was to deal with his application, the Applicant on 23 September 2019 filed an affirmation requesting to withdraw his application as he wanted to return to his home country as soon as possible.  Accordingly on 10 October 2019 this Court granted leave for him to withdraw his application.

14.  By a letter dated 11 November 2019 the Applicant wrote to the Court to request to re-open his application as he cannot return to his country as his life would still be in danger.  To save time and costs, I decided to exercise my discretion to reinstate his application and to deal with it on papers in his absence as he has never requested for any oral hearing for his application.

15.  As noted above, the Applicant has not put forward any grounds for seeking relief. 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.

16.  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 30 – 39 of its decision with the benefit of hearing him in oral evidence and in answers to questions raised of his claim during his appeal hearing before the Board, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board.

17.  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.

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