MOLLA MD LITON v. TORTURE CLAIMS APPEAL BOARD

HCAL 1268/2019

[2024] HKCFI 1370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1268 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 oral submissions by the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Bangladesh who entered Hong Kong illegally on 30 January 2016 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 for protection 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 Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Dokshin Dorikiandi, District Shariatpur, Bangladesh. After leaving school he worked in the construction site, got married and raised a family with 2 children in his home district, and followed his family’s tradition to support BNP regularly attended their local meetings and activities without holding any official post in the party.

3.  On one occasion in 2014 while he was attending a local BNP function, the Applicant and his fellow BNP supporters were attacked by a group of AL supporters with wooden sticks that he collapsed onto the ground and was subsequently taken to the local hospital for medical treatments.

4.  Upon his discharge from hospital the Applicant became fearful for his safety and fled from his home village for various places including Comilla, Chandpur and Dhaka. 　On 20 January 2016 he departed Bangladesh 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 (“NCF”) on 12 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 April 2018 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”).

6.  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 of any real intention of any of them to seriously harm or kill him or any political reasons for them to specifically target him for harm given that he was just an ordinary BNP supporter without holding 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 157 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 areas of the country away from his home district in large cities such as Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

7.  On 11 May 2018 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 27 February 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. 　On 26 April 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local AL supporters that caused him to leave Bangladesh to come to Hong Kong to seek protection, that even if his claimed political involvement in BNP were true that there was no reliable evidence of any real intention of those AL supporters to seriously harm or kill him or any political reasons for them to specifically target him for harm given that he was just an ordinary BNP supporter without any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 10 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and supporting affirmation of the same date he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the ground that it did not satisfy the requirement;

(2)  That the Board was in breach of procedural fairness in that it acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board was in breach of procedural fairness in that its decision to refuse the Applicant’s appeal is unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board was in breach of procedural fairness in failing to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated that the lack of credible source of information had resulted in groundless speculations that it is safe for the Applicant to return to his home country; and

(6)  That the Applicant was given the hearing bundle just 6 days before his appeal hearing with the majority of the documents in English which was insufficient time for him to prepare for his appeal due to his limited skills in English that he was all confused at the hearing.

10.  Grounds (1) – (5) are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply 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 act in a procedurally unfair or irrational manner, or what source of news or information relied on by the Board were not officially recognized or were hearsay or outdated. 　As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

11.  As for his remaining complaint under Ground (6) of being provided with the hearing bundle just few days before his appeal hearing with the majority of the documents in English thereby giving him insufficient time to prepare for his appeal given his limited skills in English, the Applicant never produced any documentary evidence such as the covering letter of the hearing bundle in support of his assertion, while he in fact already had access to most of the documents such as his own NCF and records of his screening interview in his earlier process before the Director and with legal representation from DLS, and that he never raised any such issue during the hearing when he was assisted by an interpreter and was able to given evidence and make proper representations to the Board for his appeal without problem. 　As such I do not find anything amiss arising from his hearing bundle or that this complaint is reasonably arguable for his intended challenge either.

12.  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.

13.  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 76 – 90 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.

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

15.  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.

16.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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