SUJAN MD ABU BAKKAR SIDDIQ v. TORTURE CLAIMS APPEAL BOARD

HCAL 2098/2018

[2022] HKCFI 730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2098 of 2018

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 the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Bangladesh who arrived in Hong Kong on 7 November 2015 as a visitor with permission to remain up to 21 November 2015 when he did not depart and instead overstayed, and on 24 November 2015 he surrendered to the Immigration Department and subsequently raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as he supported their rival party Bangladesh Nationalist Party (“BNP”) and for refusing to pay them extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Abdullapur, Tongibari, Munshiganj, Bangladesh. After leaving school he ran a business dealing in sewing machine parts in his home village, got married and raised a family with one son, and supported BNP by regularly attended their local meetings and rallies.

3.  In 2009 he started to receive threatening demands from some local AL supporters for extortion money from his business which eventually drove him to close down his business in 2012 and to move his family to Dhaka where he eventually re-opened his same business.

4.  However, soon the local AL people in Dhaka also started to extort money from him, and one evening in March 2014 he was attacked by some of them that he suffered cuts and bruises which required medical treatment in a local hospital, and several months later in July 2015 his shop was broken in, vandalized and with all the cash stolen, of which the Applicant suspected was carried out by those AL people, he therefore felt it was no longer safe to remain in Bangladesh, and so on 6 November 2015 he departed for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 3 April 2017 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 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”).

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 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 evidence or reason for them to specifically target the Applicant for harm given his low position in BNP, that those AL people were essentially after him for extortion money and 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 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 Chittagong where it would be difficult if not impossible for those local AL people to locate him.

7.  On 12 April 2017 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 1 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s evidence that he had been extorted money by the AL people with threats but found no evidence of any official involvement that state/police protection would be available to him upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other areas away from his home district to some large cities without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

9.  On 3 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and amongst numerous recitation of various law and principles cited in his supporting affirmation of the same date, he put forth the following grounds for his intended challenge:

(1) That the Board erred in failing to maintain the high standard of fairness by not holding any oral hearing for his appeal so as to allow him an opportunity to put forward his case;

(2) That the Board failed to apply the minimum standard of procedural fairness required in its decision making regarding the Applicant’s claim; and

(3) That the Board failed to take into consideration that the Applicant was not legally represented in his appeal with insufficient legal knowledge which had jeopardized his representation in the appeal process.  

10.  The Applicant’s complaint under Ground (1) of not being afforded an oral hearing for his appeal before the Board is simply factually incorrect, as it is clear from the Board’s decision ([21] – [25]) that he did attend an oral hearing on 1 August 2018 before the Board during which he was able to give evidence and make representations for his claim and appeal that this ground of the Applicant is simply not arguable at all for his intended challenge.  

11.  As for his complaint under Ground (2) of the Board failing to apply high standards of fairness in its determination of his claim, the Applicant did not provide any details or particulars or elaboration as to how the Board did so, and having scrutinized its decision and the process of its determination of the Applicant’s claim, and in the absence of any failure on the part of the Board clearly and properly identified by the Applicant, I do not find this complaint of the Applicant reasonably arguable either.

12.  As regard his remaining complaint under Ground (3) of lack of legal representation for 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 167; and Re Zafar Muazam [2018] HKCA 176.

13.  The Applicant already had the benefit of legal representation in presenting his case to the Director and was able to testify and make representation in his appeal before the Board and to answer questions raised of his claim by the Adjudicator with the assistance of an interpreter without difficulty. As such I do not find anything amiss arising from his lack of representation in his process before the Board, nor do I find this ground reasonably arguable.

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.  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.     

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