JONY HOSSAIN v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1481/2018

[2020] HKCFI 304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1481 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 40-year-old national of Bangladesh who last entered Hong Kong illegally on 22 January 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 some local gangsters for refusing to pay extortion money.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Paschim Jatrabari, Dhaka, Bangladesh.  After leaving school he worked as a baggage carrier, married his wife and raised a family of two children in his home district.

3.  In 2000 he was told by his mother to purchase a piece of land in Bhuigarh Delpada, Narayanganj, some half an hour drive from his home district.

4.  In about 2006 the Applicant began to build a house on the land.  One day in late 2006 a group of local gangsters approached him for extortion money with threats that otherwise he would not be allowed to continue with his construction, and was told that he should have the money ready in a week.

5.  One week later those gangsters retuned for the money, and when the Applicant told them that he was unable to pay them, they proceeded to attack him by punching and kicking him, and threatened to kill him unless he paid them the money within a week.

6.  After the gangsters had left, the Applicant went to seek help from his village elders but to no avail, and so he fled from his home to hide in various places including in Dhaka where he stayed for five months without incidents, but when he heard that those gangsters were still looking for him, he therefore departed Bangladesh and sneaked into Hong Kong on 30 April 2007, and after he was arrested by the police on 18 March 2008, he raised a torture claim on the basis of his fear of harm from those gangsters, and was released on recognizance pending the determination of his claim, which he however withdrew in April 2013 after he was told by his mother that her land had been sold and that it would be safe for him to return to Bangladesh.  On 23 May 2013 he was repatriated to Bangladesh.

7.  Upon returning to Bangladesh, the Applicant resumed living with his wife and children in his home district.  However, one evening those local gangsters came to his home and again threatened to kill him unless he paid up the extortion money within two week.  The Applicant did not seek help from the police and instead he again fled to Dhaka, and on 19 January 2014 he 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 on 17 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police on 26 June 2017 for undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 15 months.     

9.  By a Notice of Decision dated 26 January 2018 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”).

10.  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 gangsters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, 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 spread across a vast territory 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 those local gangsters to locate him.

11.  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 27 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found that the Applicant had exaggerated his claim and doubted that those local gangsters would still have any adverse interest in him after all these years and that the land had already been sold by his mother, that in the absence of any evidence of official involvement that state/police protection would be available to the Applicant, and that in any event such threats from those gangsters were localized that with reasonable internal relocation within Bangladesh for the Applicant to move safely to other areas away from his home district in large cities such as Chittagong, Khulna or Dhaka where he would not be located by those gangsters that his claim for non-refoulement protection failed on all applicable grounds.  

13.  On 27 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 put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim as they were not fair or reasonable;

(2) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case which had led to an unfair outcome of rejecting his claim;

(3) that the Director failed to take into account the Applicant’s argument that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4) that the Director failed to consider or give sufficient weight to those relevant COI which support the Applicant’s aversions that the police in his country would not be able to protect;

(5) that the Director relied on COI which suited his pre-conceived conclusion which was a clear case of unfair attitude enough in itself to render the decision void;

(6) that the Director failed to consider the fact that corruption and incompetency of the administration in his country is still a very serious problem as evidenced by the reports of various human rights organizations which stated testament to the Applicant’s assertions; and

(7)  that the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered as unreasonable in the scope of public law.

14.  These are however all just broad and vague assertions of the Applicant containing several 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 apply high standard of fairness or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to his claim when he never made any reports to the police or sought their assistance.  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 the decisions being clearly and properly identified by him with sufficient detail or particularity, I do not find any of his proposed grounds reasonably arguable for his intended challenge.

15.  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.

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 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.

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