MOSTOFA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1373/2018

[2020] HKCFI 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1373 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 31-year-old national of Bangladesh who entered Hong Kong illegally in October 2013 and was arrested by police on 4 March 2014.  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 certain 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 Nowadda, Autshahi, Tongibari,Munshiganj, Dhaka, Bangladesh.  After leaving school he assisted in his father’s farming in his home village.

3.  In 2012 the Applicant started to support the political party Bangladesh Nationalist Party (“BNP”) by attending its local meetings and rallies in his home district, during which he also experienced violent conflicts with rival AL supporters, and on one occasion he wasthreatened by a group of AL supporters who proceeded to beat him with punches and kicksbefore he managed to flee from the scene to take shelter at a friend’s place. After those AL supporters left the Applicant did not report the attack to the police because he suspected that they were under the influence of AL who were then the ruling party.

4.  As he was still fearful for his life, the Applicant in September 2012 departed for China, but after staying there for a week, he was told that things at home appeared to have quiet down, and so he returned to Pakistan in late September 2012.

5.  One evening in October 2012 while he was meeting with two fellow BNP supporters in the village, they were confronted by the same group of AL supporters who proceeded to attack them with wooden sticks that the Applicant was bruised all over his body.

6.  After the incident the Applicant sought medical treatments in a local clinic, and while he was resting at home, some AL supporters came to his house looking for him, but he managed to make his escape through the back door and fled to his uncle’s place in Dhaka,and from there he departed on 4 December 2012 for China, and later sneaked into Hong Kong, and upon his arrest by the police five months later he raised his non-refoulement claimfor protection, for which he completed a Non-refoulement Claim Form on 20 January 2017and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 10 February 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 would be harmed or killed by those AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatments from them, that there is no reliable evidence that he had been specifically targeted by the AL supporters given that he held no official post in BNP,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 adult with work 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 those AL supporters to locate him.

9.  The Applicant then 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 25 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s evidence of his claim vague and unsubstantiated, which was further undermined by his failure to raise his non-refoulement claim some five months after his entry in Hong Kong until his arrest by the police, that there was no evidence of any official involvement that state protection would be available to him, and that any threats from those AL supporters would be confined to his local area that the Applicant can safely and reasonably relocate to a different part of Bangladesh wherehe can re-establish himself without any real risk of any harm that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 13 July 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 his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1)  procedural impropriety in their failure to consider that the state must effect reforms and avenues of effective redress in the discharge of the government’s duty of due diligence;

 (2)  procedural impropriety in failing to conduct a critical analysis of the relevant COI material or to provide any justification as to why those COI which supported their conclusion should be preferred;

 (3)  procedural impropriety in their cherry picking of the COI in arriving at their decision;

 (4)  procedural impropriety in their failure to take into account the concept of extended state acquiescence in assessing the Applicant’s claim;

 (5)  procedural impropriety in their failure to assess the Applicant’s claim under BOR 3 or CIDTP risk when he had suffered physical torture and threats from those AL members which caused him to flee from his home country;

 (6)  error/misdirection in law in their failure to consider the psychological harm which befell on him as stipulated by the facts as stated in his claim when the assessment of harm was confined only to his physical injuries;

 (7)  illegality/irrationality in taking into account irrelevant considerations of the fact that the Applicant was able to leave Bangladesh without incident.  

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 Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why was the concept of extended state acquiescence relevant to his claim when he never sought assistance from the police.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and I do not find any of them reasonably arguable for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, 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.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 14 – 29 of its decision with the benefit of hearing him in his evidence and answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in his process before the director or the Board or in their decisions being clearly and properly identified by the applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board.  

15.  Furthermore, 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 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.

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 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