CHOWDHURY ABDUL KADER v. DIRECTOR OF IMMIGRATION

HCAL 202/2018

[2020] HKCFI 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 202 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 50-year-old national of Bangladesh who entered Hong Kong illegally on 22 January 2014 and was arrested by police on the same date.  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 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 Village Shangisshor, District Comilla,Bangladesh.  After leaving school he assisted his father in farming in his home village and became a supporter of the Bangladesh Nationalist Party (“BNP”).  In 1997 he started to work as a construction worker in various places in Bangladesh as well as in Saudi Arabia,got married and moved his family to Dhaka.

3.  At around that time he started to experience the constant political clashes between supporters of AL and BNP which would very often turn violent, such as during the BNP rally held in 1996 at Comilla when a bomb blast caused numerous injuries, and while the Applicant was fleeing from the scene, he was attacked by AL supporters with bamboo sticks.

4.  After the bomb incident the Applicant moved to Chittagong where he worked in construction sites, but would continue to receive threats and harassments from the local AL supporters, and on one occasion he was assaulted by some of them on the street until intervened by passers-by that he managed to escape.

5.  After one of the BNP leaders was killed by another bomb blast in Chittagong, the Applicant decided to leave the country to avoid further violence by going to Saudi Arabia in 2001 to work as a construction worker until 2004 when he returned to his home town in Comilla, but soon the threats and harassments from the local AL supporters would resume,and in 2006 he moved to Dhaka and continued with his support for BNP.

6.  His stay in Dhaka remained uneventful until 2013 when there was another bomb attack on BNP supporters during a rally by AL supporters resulting in numerous injuries,and while the Applicant was not hurt in that incident, he began to lose confidence in the ability of the police or the authorities to control and protect its citizens as AL was still the ruling party, and decided to leave the country again, which he eventually did on 21 January2014 when he departed for China, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 23 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 15 July 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”),risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those AL supporters to the Applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that being just an ordinary supporter of BNP with no particularposition in the party that there was no reason why he would be specifically targeted by theAL supporters other than being just a random victim of threats and harassments arose from the constant conflicts and clashes between supporters of rival political parties in his home country, that in the absence of any official involvement that state or police protection wouldbe 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 168 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 work experience to move to other part of Bangladesh away from his home district in large cities such as Khulna where it would be safe for him to live and work without any risk from any particular source of threats.

9.  By a Notice of Further Decision dated 13 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of whichwas filed on 26 July 2016, and for which he attended an oral hearing on 22 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board accepted that the Applicant may be a BNP supporter but was of such low level and insignificance that it was not accepted that he would attract any particular attention from the AL supporters, and while he might have been subjected to ill-treatments or risk of harms during clashes between supporters of BNP and AL in various locations during political rallies, it found no evidence that he was particularly at risk of serious harm and that his fear of it was not well-founded, and that in any event state protection and reasonable internal relocation would be available that it would not be unduly harsh for the Applicant to safely relocate to other parts of Bangladesh that his non-refoulement claim for protection failed on all applicable grounds.

12.  On 9 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking reliefwas given in his Form, while in his supporting affirmation of the same date he merely statedthat the decision of the Director was unreasonable in that he failed to consider all the matters raised in his claim and/or to give adequate reason for his decision, which are just some vague assertions without any particulars or specifics or elaboration as to how that was so.  

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 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.  As noted above the Applicant did not put forward any proper or valid grounds other than some vague assertions of unreasonableness or unfairness in the decisions of the Director or the Board without any particulars or elaborations, and in the absence of any error in law or procedure in their decisions being clearly or properly shown by him,I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

15.  As it has also been held by the Court of Appeal that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country, or of mass conflicts or violent clashes between supporters of rival political parties as in the Applicant’s case, does not per se constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or ill-treatment upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati & anor [2018] HKCA 461.  There is in my view simply no basis to accept that upon his return to Bangladesh, the Applicant would face any real and personal risk of being subjected to harm or ill-treatment whether in the hands of AL supporters or otherwise.

16.  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.

17.  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.

18.  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