REZAUL MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 155/2019

[2022] HKCFI 3811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 155 of 2019

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

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 in January 2015 and was arrested by police on 16 February 2015. 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 certain local supporters of the political party Awami League (“AL”) as he supported their rival Jamaat-e-Islami (“JEI”) and refused to join AL. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Haluaghat, District Mymensingh, Bangladesh. After leaving school he ran a business manufacturing yarn and jute for clothing material, got married with a family with 2 children, and followed the footstep of his father and brothers to support JEI by regularly attended their local meetings and rallies but without holding any official post in the party.

3.  In 2009 or 2010 a local AL leader and his followers approached the Applicant to invite him to join AL, but when he refused, they made threats against him, and later when one of the Applicant’s brothers was killed in a separate incident by some unknown men, the Applicant suspected that it was instigated by the same AL leader who had also earlier approached the Applicant’s brother to join AL but was also refused by the Applicant’s brother, but for which the police was unable to bring charges against the AL leader due to lack of proof.

4.  On another occasion in about 2012 while the Applicant was having tea with his friends somewhere outside his home village, the local AL leader appeared with his men to start shooting at the Applicant with his pistol, but the Applicant and his friends managed to escape from the scene unharmed.

5.  After the shooting incident, the Applicant fled to Nepal and India before returning to Bangladesh 5 weeks later and stayed in a friend’s place in Dhaka, but when he later in September 2014 returned to his home village, he ran into the local AL leader and his followers who accused him of remaining in the village without joining their party, and proceeded to beat him with wooden sticks until some villagers intervened and brought the Applicant to the hospital for medical treatments.    

6.  After the assault the Applicant became fearful for his life, and so on 11 December 2014 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 7 November 2017 the Director of Immigration (“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 those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to target the Applicant for serious harm given that he was just an ordinary JEI supporter without any official post in the party, 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 1.57 billion people spread across a vast territory of more than 1.3 million 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 the country away from his home district in large cities such as Chittagong, Khulna or Dhaka where it would be difficult if not impossible for those local AL supporters to locate him.

9.  On 16 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 12 September 2018 before the Board during which he declined to give any further evidence but did answer questions raised of his claim by the Adjudicator for the Board. On 24 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s answers to questions raised of his account of threats against him and his brother by the local AL leader in his home village during his appeal hearing vague, inconsistent and unconvincing that it doubted the credibility of his claim of fear of such threats that caused him to leave his country for Hong Kong, which was further undermined by his failure to raise his claim upon his first arrival in Hong Kong until after his arrest by the police, and that in any event if such threat from the AL supporters were real that it was a localized one and that the Applicant can relocate safely to other part of Bangladesh away from his home village in large cities without any risk of being located by those local AL people that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 16 January 2019 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) Misdirection in the law by the Adjudicator for taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5) Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6) Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9) Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

12.  These are however all just broad and vague assertions of the Applicant containing several pages of 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 Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and 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.  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 the Applicant 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 decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral 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, nor do I find this ground reasonably arguable either.

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 its decision with the benefit of hearing him in 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.  

17.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if true 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