RAFIQ REHMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1368/2018

[2020] HKCFI 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1368 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 47-year-old national of Bangladesh who last entered Hong Kong illegally on 9 November 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 some local supporters of political party Awami League (“AL”) over certain personal dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Collegepara, Alamdanga Upazila,District Chuadanga, Bangladesh.  After leaving school, he became a AL’s supporter, and assisted in his father’s business, and later ran his own electronics business.

3.  One day in about 1998, one of the Applicant’s nephews who also lived in the Applicant’s home and who was a member of the outlawed militant group Purbo Banglar Communist Party (“PBCP”) had allowed one of his leaders Siraj to hide in the Applicant’s home from the police.  Eventually Siraj surrendered to the police and was subsequently sentenced by the court to prison.

4.  One day in June 2005 the Applicant was abducted by some PBCP members who demanded that he joined their party, and when he refused, they beat him until he lost consciousness, and was later abandoned in a village and was brought by the villagers to the hospital for medical treatments.

5.  After the incident, the Applicant did not report the matter to the police, but as he was fearful for his life, he therefore fled to take shelter at his sister’s place in Village Mehernagar, District Kushtia where he stayed for about one year without incidents.

6.  Thereafter the Applicant moved to Chittagong and Dhaka, but as he was still fearful of those PBCP members, he therefore in 2007 departed for Hong Kong where he raised a torture claim, but before it was determined by the Immigration Department, he withdrew his claim in 2014 after being told by his family that the PBCP members no longer had any adverse interest in him and that it was safe for him to go home, and so on 16 October 2014 he was repatriated to Bangladesh.

7.  However, about two months after his return to his home village in Bangladesh, some local AL members started to harass him because Siraj had joined their local constituency upon his release from prison and wanted to take revenge against the Applicant as he blamed him for his arrest by the police in the past, by making a false claim against the Applicant that caused him to be arrested and detained by the police, and during the detention he was beaten by the police with batons.

8.  After being detained for 14 days, the Applicant was brought by the police to court and he was released on bail.  One day while he was on his way home in the village, he was ambushed by a group of the local AL supporters who attacked him with weapons, and hearing the Applicant’s scream, some of his family members came to his help and tried to fend off the assailants, during which the Applicant and his cousins were injured and had to be taken to the local hospital where his cousin later died from his injuries.

9.  Afterwards the Applicant’s family reported the assault to the police, but no action appeared to have been taken, and instead the Applicant was later arrested after another false charge was made against him.  After being detained by the police for several days,he was brought to the court and was remanded in the police custody during which he was interrogated and beaten by the police.  Eventually he was released on bail pending further investigation.

10.  About a month later the Applicant was abducted by some unknown men and broughtto some unknown place during which he was beaten and kept inside a small room.  Eventuallyhe managed to escape through a window and fled to Chittagong and Dhaka, but as he felt it was no longer safe to remain in Bangladesh, he therefore departed on 26 October 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

11.  By a Notice of Decision dated 11 April 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”).

12.  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 Siraj and his AL people to the Applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that the credibility of his claimed events occurred in Bangladesh prior to his departure was doubtful due to many inconsistencies and discrepancies in his evidence, that in any event 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 168 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 Chittagong or Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for Siraj or his AL people to locate him.

13.  On 28April 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 27 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 5 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.  In its decision the Board accepted the Applicant’s account of events occurred prior to his departure from Bangladesh, but found no evidence of any real intention of those AL people to harm or kill him given the many opportunities for them to do so in the past, and that in any event the risk of harm was confined to his home district that with state protection and reasonable internal relocation options within Bangladesh for him to safely move to other areas such as Chittagong or Dhaka where it would be difficult for those AL people to locate him that his claim for non-refoulement protection failed on all applicable grounds.

15.  On 12July 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)  that the Board was in breach of procedural fairness by unlawfully fettering its discretion in refusing his appeal on the ground that they did not satisfy the requirement;

 (2)  that the adjudicator was in breach of procedural fairness by acting in a procedurallyunfair manner in dealing with his appeal;

 (3)  that the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness;

 (4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant;

 (5)  that it was procedurally unfair for him to be given the hearing bundle just six days before his appeal hearing which were all in English without translation thereby given him insufficient time to prepare for the hearing especially due to his limited skills in English and unable to find assistance from interpreter; and

 (6)  that the Board significantly relied on sources of news not officially recognized or were simply hearsay or outdated which resulted in the Board making groundless speculations that it would be safe for him to return to his home country.    

16.  These are however mostly 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 Board or the adjudicator had erred in the decision, or in what way was there procedural unfairness in his process before the Board or in its decision or that those COI relied on were outdated or hearsay.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, 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 him with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

17.  As has been repeatedly emphasized by the Court of Appeal, 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.

18.  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.

19.  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 asthey had earlier all been already 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.

20.  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.

21.  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.

22.  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