RAHMAN MOHAMMAD BAZLUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 8/2020

[2024] HKCFI 409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 8 OF 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally on 26 August 2015 and was arrested by police on 2 September 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 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 Naihati Village, Khorikhali, Jhenaidaha District, Bangladesh. After leaving school he worked as a farmer at his family farmland, got married and raised a family with 2 children. Since 2002, he joined and supported BNP as a general member and attended their local meetings and activities without holding any official post in the party.

3.  After AL came into power in 2008, political unrests followed and BNP members were suppressed. BNP organized nationwide strikes and the Applicant has participated more than 20 of such strikes in his home district during which the Applicant received death threats from other AL members. Violent clashes often occurred during those strikes between members of AL and BNP and later the Applicant reported such clashes to the police in April 2014 but the police did not take any action. At the time, AL had just won another election and continued to be the ruling party in Bangladesh.

4.  The Applicant became fearful of the death threats and therefore in November 2014 he fled to India for 4 days. In late 2014 he returned to Bangladesh and relocated to Dhaka. On 17 August 2015 he departed Bangladesh again 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 12 May 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 30 May 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 her 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 the AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that he has never been physically harmed by any AL members and he received verbal threats only during his participation of the strikes, and 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 Chittagong or Dhaka where he had stayed before without incidents or where it would be difficult if not impossible for anyone to locate him.

7.  On 13 June 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 3 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that there was no evidence which supported that he had ever been threatened or assaulted by AL supporters or that he had any fear of harm from the AL supporters that caused him to leave his country to come to Hong Kong to seek protection or that he would face any risk of harm from anyone upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 2 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he put forward the following grounds for his intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

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

(4)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  The Applicant was not given a fair opportunity to keep forward his submissions in an oral hearing nor was he invited to submit written submissions during his appeal hearing before the Board; and

(6)  The Board had significantly relied on source of news not officially recognized or were simply hearsay that led to its groundless speculation that internal relocation would be available to the Applicant upon his return to his home country.

10.  These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any 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 it discretion or that the Adjudicator had acted in a procedurally unfair manner, or which source of news or COI relied on by the Board were not officially recognized or were simply hearsay or outdated, while it is clearly factually incorrect to complain that he was not given any opportunity to provide his submissions in an oral hearing when the fact is that he did attend an oral hearing before the Board during which he was able to give evidence and to make his submissions for his claim and appeal without problem and with the assistance of an interpreter. As such and as none of his proposed grounds 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 or any merits in his intended application

11.  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.

12.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision based on relevant COI and with the benefit of hearing the Applicant’s 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.

13.  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 his claim if real is a localized one and that it is not unreasonable or unsafe for his to relocate to other part of Bangladesh, there is simply no justification to afford his with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.

15.  Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as his problem has been resolved and that he now wants to return to his home country.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem returning to his home country, I accordingly dismiss 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