SATTER ABDUL v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2111/2018

[2020] HKCFI 1841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2111 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 51-year-old national of Bangladesh who last entered Hong Kong illegally on 5 August 2015 and surrendered to the Immigration Department on 6 August 2015 when he subsequently raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his creditors for failing to repay his loans and/or by the police for being involved in a political rally.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Choinpur, District Comilla, Bangladesh.  After leaving school he worked in a garment shop in his home district, and became a supporter of the political party Jamaat-e-Islamic Party (“JIP”).

3.  In 2009 he started his own garment production business in Dhaka by borrowing loans from two friends of his uncle repayable within 4 years with monthly interest payments to each creditor.

4.  However in 2012 as his business declined, he started to have difficulties making his loan repayments, and one day in June 2015 he was abducted by his creditors and their men to a building where he was kept overnight and was beaten violently that his body was covered with cuts and bruises, and on the following day he was taken to the local police station where his creditors filed a complaint against him for failing to repay his loans, but he was subsequently released on bail.

5.  Sometime after his release the Applicant participated in a political rally of JIP during which he and his fellow JIP supporters got into a mass brawl with AL supporters, but when the police arrived to make their arrests, he managed to escape from the scene and went home.

6.  However, when he later heard that the police had arrested many of the JIP supporters for fighting in that JIP rally, and fearing that the police would come after him as well as further harms from his creditors, he therefore fled from his home district to various places such as Chittagong and Sylhet, but when he heard that his creditors were looking for him everywhere, he felt it was no longer safe to remain in Bangladesh, and so on 3 August 2015 he departed 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 on 12 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 29 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 Ordinance, Cap 383 (“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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditors or the police upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of him being pursued by the police and as he was able to leave the country without any problem, that his problems with his creditors were private monetary disputes without 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 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district such as Chittagong where he had stayed before without incidents and where it would be difficult if not impossible for his creditors to locate him.

9.  On 12 July 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 26 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 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 regarding his alleged loans and subsequent abduction and ill-treatments by his creditors or possible pursuit by the police that caused serious concerns over the credibility of his claim and that the Applicant was not a credible witness that it did not accept that there would be any real or foreseeable risk of harm to him upon his return to Bangladesh, and with state protection available to him as well as reasonable internal relocation for him to safely move to other parts of Bangladesh to re-establish his life and career without any risk of being located by his creditors that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 3 October 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 as well as his written submission dated 2 December 2019 he put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2) that the adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for his claim as well as his appeal;

(3) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence which led to an unfair outcome of rejecting his claim;

(4) that the Director failed to take into account that the Applicant was tortured at the behest of the state law enforcement agencies for which the state should be rendered liable to the Applicant by cause of the state and the public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give enough weight to those listed COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(6) that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision with the argument that corruption and incompetency of the administration in his country is still a very serious problem as various human rights organizations had compiled reports which stated testament to the Applicant’s assertions which show a clear case of unfair attitude against the Applicant enough to render the decision void;

(7) that the adjudicator had unlawfully fettered his discretion by refusing the Applicant’s appeal on the ground that they did not satisfy the requirements;

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

(9) that the adjudicator acted in a procedurally unfair manner in dealing with his appeal; and

(10) that the adjudicator had relied on COI which were outdated with the lack of credible source of information resulted in making groundless speculations.  

12.  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 adjudicator had erred in their decisions, or in what way was state acquiescence relevant to his claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way did the adjudicator fail to give him sufficient time or opportunity to provide relevant evidence for his claim or his appeal, or how did the Director fail to apply high standard of fairness in assessing his claim, or in what way did the adjudicator unlawfully unfetter his discretion or act procedurally unfair in dealing with his appeal.  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.  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 48 – 56 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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, I do not find any reasonably arguable basis to challenge the finding of the Board.  

15.  Furthermore, the fact 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