MD MAMUN OR RASHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 522/2018

[2020] HKCFI 1924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 522 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 41-year-old national of Bangladesh who entered Hong Kong illegally on 10 March 2008 and was arrested by police on 1 June 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as 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 and raised in Nagar Kaya, District Kushtia, Bangladesh.  While at school he followed his family’s footstep to support the political party Bangladesh Nationalist Party (“BNP”) and joined their student wing Bangladesh Jatiotabadi Chatra Dal (“JCD”) of which he was elected the president of the local branch in his school.

3.  Due to fierce rivalry between AL and BNP at that time, the Applicant and his fellow JCD members frequently came into conflicts with AL members and supporters during rallies when mass brawls between them were common, and while the Applicant was never directly involved in any of those incidents, he and his fellow JCD members were arrested by police on several occasions due to false charges being made against them by the AL people.

4.  Eventually things quieted down in 2001 after BNP won the general election and became the ruling party, and the Applicant went on to university at Kushtia National College.  However one day in February 2003 a fight broke out between some supporters of the two rival parties in which the Applicant was not involved, but for which he and other BNP members were arrested by the police, and was later released only after he was able to explain to the police that he was never involved in the fight.

5.  In about mid-2005 a robbery occurred in a restaurant in the Applicant’s neighbourhood which had nothing to do with him, but somehow he was arrested by the police as the AL people had made a false charge against him, and it was only with BNP’s assistance that he was able to pay compensation to the restaurant that the charge against him was then dropped.

6.  In 2007 another false charge was made against him by the AL people that the police came looking for him in his home, and when they could not find him as he was then elsewhere, they instead arrested his uncle and cousins who happened to be there and only released them after a bribe had been paid by the family.

7.  Later when the Applicant heard that two of his fellow BNP members had been shot and killed by the police for the earlier robbery case, he feared that the police would next come after him, and so he departed Bangladesh on 6 March 2008 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 27 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.  By a Notice of Decision dated 22 February 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he will face any personal real and foreseeable risk of ill-treatment with life danger from those AL people upon his return to Bangladesh due to the absence of any past ill-treatment from them, that there is no evidence of him ever being targeted for political reasons or otherwise by any AL people or by the police given that he was issued a passport and was able to leave the country without any problem, 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 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 working experience to move to other parts of Bangladesh away from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for those local AL supporters to locate him.

10.  On 7 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 2 oral hearings on 3 November 2017 and 31 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found numerous inconsistencies and problematic aspects in the Applicant’s evidence of his claim that he was not accepted as a witness of truth and that he had made up his claims to have been politically active or to have any political involvement in JCD or BNP, and that he was never harmed or threatened by any AL people or supporters or falsely implicated in any criminal cases or being pursued by the police in Bangladesh prior to his departure or that he will face any proscribed harms upon his return to Bangladesh that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds. 

12.  On 29 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his enemies are still powerful and that his life would still be in danger in his home country and hence the decision in rejecting his non-refoulement claim was unfair but without providing any particulars or elaborations as to why it was so or putting forward any proper or valid ground for his intended application.  Nor did he request any oral hearing for his application.  As such I do not find any reasonably arguable basis 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 116 – 150 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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 the Director in his 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