GONI MOHAMMAD OSMAN v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 347/2018

[2019] HKCFI 182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 347 of 2018

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 refused.

Observations for the Applicant:

1.  The applicant is a 24-year-old national of Bangladesh who entered Hong Kong illegally on 16 October 2015 and was arrested by police on the same date.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Vorakor, Kalma, Munshiganj, Bangladesh where his parents were local members of the political party Bangladesh National Party (“BNP”).  When he was at school the applicant joined Chatra Dal, the student wing of BNP and regularly attended their rallies and processions, and in 2011 he was nominated the local president of the Chatra Dal in his home village.

3.  One day in early 2012 while he was on his way home after attending a political event, he was approached by several members of the student wing and youth wing of rival AL to join a senior post in their party, with a warning that if he refused and remained with BNP, he would face serious consequences.  When the applicant asked for time to consider their proposal, the men then left.

4.  Several months later while attending a meeting of his party in the market place of neighbouring Village Kalma, the applicant and 70 other members and supporters were attacked by 100 members of AL with wooden sticks and iron rods during which the applicant sustained an injury to his head and bruises all over his body before he managed to escape from the scene to receive medical treatments at the local hospital where he was hospitalized for two days.

5.  About a week later the applicant’s father returned home to find several AL members waiting outside his house armed with guns and wooden sticks with a warning for the applicant to resign from his position in the Chatra Dal or else there would be serious consequences.

6.  The applicant’s father took their threats seriously and on his advice the applicant took shelter at his cousin’s place in Dhaka where he stayed for about one year without incidents before moving to his aunt’s place in Chittagong, but when he heard that police were arresting BNP’s members in her area, he therefore moved to his uncle’s place in Faridpur before returning to his cousin in Dhaka where he was advised to leave Bangladesh for his own safety, and with the assistance of an agent he departed on 3 October 2015 for China, and from there he later sneaked into Hong Kong and later raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 12 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 1 September 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 (“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 all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that he will face any personal real or foreseeable risk from his perceived enemies in Bangladesh, that there is no evidence that he was specifically targeted for attack in that 2012 incident at the market place when he together with 70 fellow members of Chatra Dal were attacked by AL members, that whatever threats from the AL people were confined to his home district and which he never encountered any elsewhere in Dhaka or Chittagong, 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 (“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 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to other part of Bangladesh away from his home district in large cities such as Dhaka or Chittagong where he had stayed before without incidents and where it would be difficult if not impossible for his perceived enemies to locate him.

9.  On 13 September 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 20 December 2017 before the Board during which he however declined to give evidence or to answer any questions despite being invited to do so by the adjudicator for the Board.  On 14 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In the decision the adjudicator found on the material and information before the Board that the applicant was not singled out for attack in the 2012 incident, that there were no further threats made against him or any attempts to follow up with them before or after he left his home village for Dhaka and Chittagong which indicated that any risks of harm to him that there were had dissipated long before he decided to leave Bangladesh for Hong Kong, that at the time he did there were no such threats and no risk to his physical safety, and that even if such risks were to persist that reliable COI show that both state protection and reasonable internal relocation alternatives would be available to the applicant in Bangladesh that the Board concluded that his claim therefore failed on all applicable grounds.   

11.  On 5 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decision wrongly in assessing his non-refoulement claim;

(2)  that their decisions were not reasonable or fair as required by the Wednesbury test;

(3)  that they failed to take into account of the extra-judicial killings that he may face if he was deported to Bangladesh in assessing his claim under BOR 2 risk; and

(4)  that the adjudicator failed to give him sufficient time or opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

12.  These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in the decision, or in what way were their decisions wrong or unfair or unreasonable in assessing his claim, or how are extra-judicial killings relevant to his claim, or how did the adjudicator fail to give him time or opportunity to arrange for relevant evidence to support his claim or appeal before the Board.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even at the hearing of his application now before me, he did not provide any further evidence or representation regarding his claim.  There is simply no basis or merit in any of these complaints of 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 or procedural unfairness or irrationality in those decisions being 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 Re Litoun Mounsy [2018] HKCA 537.

14.  In the present case the applicant refused to answer questions to clarify or elaborate his evidence in the documents before the Board at the invitation of the adjudicator, and there was therefore no objective evidence to support his material assertions.  Based on his evaluation of the evidence before the Board, the adjudicator was entitled to reject the applicant’s claim which is within his province, and with which the Court in its judicial review jurisdiction will be slow to interfere.  

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, with which the Board agreed when it confirmed his decision, there is simply no justification to afford the applicant 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 or irrationality 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