NUR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2114/2018

[2020] HKCFI 2059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2114 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 36-year-old national of Bangladesh who entered Hong Kong illegally in May 2008 and was arrested by police on 17 November 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by his creditor for failing to repay his loan, and after his torture claim was rejected, he then raised his non-refoulement claim for protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Durgapur, District Noa Khali, Bangladesh.  After leaving school he married his wife and raised a family of three children by running a business manufacturing leather bags at Durgapur, and in early 2007 in order to expend his business, he borrowed a loan from his childhood friend from the village who was then a wealthy businessman in his 60s and who agreed not to charge any interest on the loan but which was to be repaid within 6 – 8 months.

3.  However, by late 2007 the Applicant was unable to repay his loan as his business was doing poorly which was eventually closed down, and in November 2007 he returned to his home village, but as he was unable to repay his loan, his friend lost his patience with him and threatened that there would be serious consequence including complaining to the police.

4.  One day in December 2007 the Applicant was called to the local police station where the police officers there warned him to resolve his loan dispute with his friend or else he would be in trouble.

5.  Afterwards the Applicant fled to Dhaka to stay in his friend’s place, but when he was later told by his wife that his creditor had come looking for him and threatened to kill him if he still failed to repay his loan, he departed Bangladesh on 12 April 2008 for China, and from there he later sneaked into Hong Kong and raised his torture claim and later his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 22 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  While released on recognizance pending determination of his claim, the Applicant was arrested by police on 12 June 2017 for undertaking unauthorized employment for which he was later convicted and sentenced to prison for 15 months.     

7.  By a Notice of Decision dated 27 December 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 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial risk of him being harmed or killed by his creditor upon his return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from the creditor, that there is no evidence of any real intention on the part of the creditor to harm him other than to press for repayment of his loan, or of any official involvement of the police who were merely trying to persuade him to resolve his dispute with his creditor after a report had been made against him, that in the circumstances 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 160 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 part of Bangladesh 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 his creditor to locate him.

9.  On 8 January 2018 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 13 July 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 4 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s claim that he might have some monetary dispute with his old friend from the home village but found no evidence of any threats or intention to harm or kill him over their dispute, and that in any event with state/police protection available upon his return to Bangladesh as well as reasonable internal relocation for him to move to other area away from his home village without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.   

11.  On 4 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) misdirection in law in that the adjudicator wrongly took into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

12.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, 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 him, I do not find any of these grounds reasonably arguable for his intended challenge.

13.  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.

14.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his SCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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