SHOHAUG HOSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2596/2019

[2021] HKCFI 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2596 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 (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 36-year-old national of Bangladesh who arrived in Hong Kong on 28 July 2006 with permission to remain as a visitor up to 11 August 2006 when he did not depart but instead overstayed and was arrested by the police on 9 August 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of rival political party Bangladesh Nationalist Party (“BNP”). He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Bepari Para, District Jhenidah, Bangladesh. After leaving school he did not work but joined the political party Awami League (“AL”) in 2005 as an ordinary member regularly attended their local meetings and rallies, during which he was threatened by some local BNP supporters with demands for him to quit his party, and when he refused, he was assaulted with hockey sticks and iron rods that he subsequently fled to Dhaka in May 2006.

3.  On 28 July 2006 he departed Bangladesh for Hong Kong as a visitor where he overstayed, and upon his subsequent arrest by police, he raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 28 March 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  Whilst being released on recognizance pending determination of his claim, the Applicant was again arrested by police on 16 April 2008 for undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 2 months.

5.  By a Notice of Decision dated 18 July 2014 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 Ordinance, Cap 383 (“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 BNP supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that given his low position in AL that there is no reason he would still be targeted by the BNP supporters especially after all these years, that AL have since his departure of Bangladesh become the ruling party that it is unlikely that any BNP supporters would still have any adverse interest in him, that in the absence of any official involvement that state 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 166 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other area 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 those local BNP supporters to locate him.

7.  On 1 August 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not conduct any oral hearing, and on 27 April 2015 it dismissed the appeal upon finding essentially that the Applicant’s claim was not credible, and that it also confirmed the Director’s decision.

8.  On 16 March 2016 the Applicant with legal representation filed his Form 86 for leave to apply for judicial review of the Board’s decision on 2 grounds, namely that the Board erred in refusing to hold an oral hearing despite new evidence being raised in his appeal and that credibility was in issue, and that the Board held no independent enquiry into the relevant COI in assessing his claim.     

9.  Meanwhile on 15 December 2016 the Director on his own initiative invited the Applicant 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”), and in the absence of any response from him the Director by a Notice of Further Decision dated 3 January 2017 again rejected the Applicant’s claim including BOR 2 risk.

10.  Later by a judgment dated 6 June 2017 M Poon J allowed the Applicant’s application for judicial review upon finding that the Board had failed to apply high standards of fairness in refusing to hold an oral hearing for his appeal, and granted a certiorari to quash the Board’s decision.   

11.  Accordingly, the Applicant’s appeal was remitted to the Board for reconsideration before another Adjudicator, for which the Applicant attended an oral hearing on 30 July 2019 in person before the Board during which he gave evidence and answered questions put to him by the second Adjudicator for the Board. On 16 August 2019 his appeal was again dismissed by the Board which also confirmed both decisions of the Director.

12.  In this decision the Board found inconsistencies and implausibility in the material part of the Applicant’s evidence that it was not satisfied that he had established his claim of fear of harm from those local BNP supporters, that in any event after all these years since his departure that the political situation in Bangladesh has since changed with BNP becoming much less influential since 2009 and with AL being the ruling party that it is doubtful that there would still be any adverse interest in the Applicant, and that in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other area away from his home district in large cities without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

13.  On 6 September 2019 the Applicant filed another Form 86 for leave to apply for judicial review of this second decision of the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1)  that he was not given any legal representation for his second appeal before the Board;

 (2)  that he was treated by the Adjudicator as an enemy during his appeal hearing before the Board who was determined to reject his claim; and

 (3)  that the interpreter did not interpret properly his evidence given at his appeal hearing.   

14.  For his complaint in Ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

15.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation on this occasion in his second appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. In the premises I do not find anything amiss arising from the lack of legal representation in his second appeal process, and I do not think this ground is reasonably arguable.

16.  As for his complaint under Ground (2) of the Adjudicator being biased against him, he did not provide any particulars or details or elaboration of such bias against him, and having carefully scrutinized and examined the decision of the Board, I do not find any basis or merits in this complaint of the Applicant.

17.  Regarding his complaints under Ground (3) against the interpreter for failing to interpret his representations properly during his appeal hearing before the Board, again it is just a broad and vague assertion made by the Applicant without any details or particulars or elaboration in support of his claim, and as such I do not find this ground reasonably arguable for his intended challenge.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

19.  The fact is that it has been established by both the Director and the Board in their decisions 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.     

20.  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 irrationality 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.

21.  Furthermore, the Applicant recently on 9 December 2020 filed an affirmation to request to withdraw his application because his “problem is solved”.  

22.  In the premises, and as I am not satisfied for the reasons given above that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that the basis of his claim no longer exists, it would be appropriate that his application be dismissed rather than withdrawn. Accordingly I 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