JUWEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 27/2018

[2018] HKCFI 2100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 27 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 35-year-old national of Bangladesh who entered Hong Kong illegally in mid-August 2006 and was arrested by police on 4 October 2006.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by ST, a local leader of the political party Bangladesh Nationalist Party (“BNP”) over certain personal dispute and for having witnessed a murder in which ST was involved, and after his torture claim had been dismissed, he then lodged a non-refoulement claim on the same basis.  He has since been released on recognizance pending the determination of such claim.

2.  The applicant was born and raised in Village Bohori, District Chandpur, Bangladesh.  After leaving school he assisted in his father’s shop in the village and followed his father’s footsteps to become a member of the Jatiya Party.

3.  The applicant’s disputes with ST first arose in 2005 from ST’s complaint about trees branching out from his family’s land over onto ST’s neighboring land for which ST demanded that their trees be chopped off, and when the applicant’s father refused and invited NM who was the local leader of the Jatiya Party to assist in resolving the dispute, a fight broke out during which the applicant, his father and NM were assaulted by ST and his followers that they ended up having to receive treatment at the local hospital.

4.  After the incident the applicant’s father was arrested by the local police as ST had filed a complaint accusing him of assaulting him and was detained by the police for a month until ST withdrew his complaint after he was said to have been threatened by NM and his men.

5.  Shortly thereafter when the applicant went to visit NM, he found him being viciously attacked by ST and his men, and when they saw him and tried to chase after him, the applicant fled from the scene and hid in his aunt’s place in Chandpur.

6.  On the following day NM’s body was discovered and the police started an investigation into his murder, and when the applicant heard that ST and his men were looking for him, he feared that ST was trying to eliminate him as an eye-witness to the murder of NM and therefore fled to Dhaka to hide in another relative’s place, but when he learnt that ST had sent some gangsters to look for him in Dhaka, he was advised by his father that it was no longer safe for him to remain in Bangladesh, and therefore departed in August 2006 for China, and from there he sneaked into Hong Kong where he first raised a torture claim, and when it was rejected with its subsequent appeal also dismissed, he then lodged a non-refoulement claim for which he completed a Supplementary Claim Form (“SCF”) on 24 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 9 June 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including 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”).

8.  In his decision the Director took account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from ST and his men upon his return to Bangladesh as low due to the low intensity and frequency of their past ill-treatment and that there is no reliable evidence that ST still has any adverse interest in the applicant after all these years, that if the applicant were indeed a witness to a murder in a police investigation that state or police protection would be available to him, 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 work experience to move to other area away from his home district such as Dhaka or Chittagong where it would be difficult if not impossible for ST to locate him.  

9.  On 23 June 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 25 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board upon hearing the applicant in evidence and taking into account that he did not make his claim for protection after entering Hong Kong until after his arrest, it found exaggerations, uncertainties and untruthfulness in his evidence and information about his claim which were also lacking in details, and concluded that the applicant is not a witness of truth and that he has failed to establish a real risk that he will suffer any form of harm if refouled to Bangladesh.

11.  On 5 January 2018 the applicants filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

 (1) that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement;

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

 (3) that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness; and

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

12.  These are however all just broad and vague assertions of the applicant containing a few 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 Board unlawfully fetter its discretion or acted in a procedurally unfair manner, or how was the decision unreasonable or irrational in the public law sense.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.  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 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

14.  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.

15.  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 SCF, 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 SCF 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 enable him 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. 

16.  In the premises and having proceeded to consider 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