HALDAR ALOM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1339/2018

[2020] HKCFI 230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1339 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 65-year-old national of Bangladesh who entered Hong Kong illegally on 9 December 2014 and was arrested by police on the same day.  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 rival political party Awami League (“AL”) for refusing to join their party.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Bashira, District Munshiganj, Bangladesh.  After leaving school he first worked as a farmer in his home village, and later sold fruits and vegetable as well as used garments to make a living, and became a supporter and later a member of the political party Bangladesh National Party (“BNP”).

3.  Since AL won the general election in 2008 and became the ruling party, some of their supporters in the Applicant’s home village would from time to time demand that he should join their party, but the Applicant would always refuse them.

4.  In 2013 before the next general election, those local AL supporters again pressed the Applicant to vote for AL and to join their party, and when the Applicant refused, they came to his home to threaten him and broke his things, but when the Applicant reported the matter to the local police, no investigation was taken as the Applicant suspected that the police were under the influence of the AL

5.  One day several months later while the Applicant was on his way home from the market, he was approached by those local AL supporters who then attacked him with wooden stick and other weapons that the Applicant was struck on the forehead and lost consciousness that he was later taken home by other villagers for treatment to his forehead. 

6.  Thereafter the Applicant would receive threatening letters warning him that he would face serious consequences if he still refused to join AL, and when he was unable to get any help from the local police or the village head, he therefore fled to Dhaka where he had stayed for several months without incidents, but when he still felt it was not safe to remain in Bangladesh, he therefore on 28 November 2014 departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non‑refoulement Claim Form (“NCF”) on 8 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  Whilst being released on recognizance pending determination of his claim, the Applicant was again arrested by police on 12 November 2015 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.     

8.  By a Notice of Decision dated 16 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 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”).

9.  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 AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that the Applicant had been specifically targeted by the AL people for support especially after AL has become the ruling party since 2008, 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 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 working experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those local AL supporters to locate him.

10.  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.

11.  In its decision the Board found the Applicant’s evidence of his claim as to his alleged political involvement in BNP and threats from AL as vague, inconsistent and contradictory that it did not accept that he had faced any real risk of harm from the AL people in the past or that he will face any such risk upon his return to Bangladesh, and that in any event with no evidence of any official involvement that state protection as well as reasonable internal relocation will be available for him to move safely to other part of Bangladesh to re-establish himself that his claim for non-refoulement protection failed on all applicable grounds.    

12.  On 10 July 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)      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 requirement;

(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 are 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)      that the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated; and

(6)      that the hearing bundle for his appeal was provided to him only six days before the appeal hearing with the majority of the documents in the bundle in English without translation thereby given him insufficient time to prepare for his appeal or to get proper interpretation assistance in his appeal before the Board.  

13.  These are however 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 Board unlawfully fetter it discretion or act in a procedural unfair manner, or what information relied on by the Board were not officially recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

14.  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.

15.  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.

16.  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 NCF, records of his screening interviews and the Director’s decision 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 NCF 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.

17.  Essentially the Applicant’s claim was rejected by the Board on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 19 – 34 of its decision and with the benefit of hearing his oral evidence and answers to questions raised of his claim during his appeal hearing, 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. 

18.  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.     

19.  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.

20.  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