MD NOWAB MIAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2128/2018

[2020] HKCFI 1563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2128 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 44-year-old national of Bangladesh who entered Hong Kong illegally on 19 December 2013 and was arrested by police on 22 December 2013.  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 local supporters of rival political party Awami League (“AL”) and/or by his suppliers for failing to pay for their goods supplied on credit after he closed down his business.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in South Kumra Kapan, Kamalgonj, Moulvibazar, Bangladesh.  While at school he became a supporter of the political party Jamaat-e-Islami (“JEI”) and joined its student wing.  After leaving school he ran his own rice mill business in his home village, got married and raised two children, and joined JEI in which he was later in 1995 appointed the president of the local committee in Kamalgonj.

3.  In December 2008 AL won the national election and became the ruling party.  To avoid direct conflicts with AL, the Applicant in March 2009 resigned from his presidency of the local committee in Kamalgonj and went to work in Dubai as a mason.

4.  In January 2010 he returned to Bangladesh to carry on with his rice mill business in Kamalgonj and resumed his participation in the local JEI political activities.

5.  One day in January 2010 while he was having a meeting with 400 – 500 JEL members and supporters to discuss about means to counter the local political activities of AL, they were confronted by 800 – 900 AL supporters who proceeded to attack them with wooden sticks during which the Applicant was hit all over his body until the police arrived to disperse the crowd and that he managed to flee from the scene.

6.  After receiving medical treatments at a local clinic for his injuries, and upon hearing that a large number of JEI members and supporters had been arrested by the police, the Applicant was concerned that the police were on the side of AL and therefore fled to Dhaka to avoid further attacks of the AL supporters and to take shelter at his uncle’s home.

7.  However, when the police in Kamalgonj came to his home looking for him, and when they could not find him, they arrested his wife and his brothers, while his rice mills were also burnt down by the AL supporters, and without his business, the Applicant was unable to pay his suppliers for the goods earlier delivered to him, who then confronted him with demands for repayments, and when he was unable to do so, they proceeded to attack him by punching and kicking him all over his body, but he managed to make his escape without serious injuries.

8.  Several weeks later while he was at the Kamlapur train station, he ran into some of the suppliers who again demanded repayment from him, and when he was unable to do so, they beat him by punching and kicking him and tried to abduct him, but he managed to escape with only minor injuries.

9.  On 5 May 2013 the Applicant joined a mass rally of JEI members and supporters in Dhaka to demand AL to resign from the government, but when the police arrived to arrest the JEI supporters and firing their guns at them, the Applicant managed to escape from the scene unharmed.  

10.  Fearing further attacks from both AL supporters and his suppliers, the Applicant decided that it was no longer safe to remain in Bangladesh, and so on 10 June 2013 he   departed for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 14 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.  By a Notice of Decision dated 24 May 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

12.  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 the AL supporters or his suppliers upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence that he had been specifically targeted by the AL supporters for attack, that his problems with his suppliers were private monetary disputes without 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 168 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 or Khulna where it would be difficult if not impossible for his perceived enemies to locate him.

13.  By a Notice of Further Decision dated 5 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

14.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 7 June 2016, and for which he attended an oral hearing on 25 October 2017 before the Board during which he confirmed his claim as contained in the hearing bundle but declined to give any further evidence or to answer any questions raised of his claim by the adjudicator for the Board.  On 27 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

15.  In its decision the Board found the Applicant’s claim not credible, that there was no reliable evidence that he had been specifically targeted by the AL supporters or the authorities that it was not accepted that he had any genuine fear of harm from them upon his return to Bangladesh, and that his problems with his suppliers were private monetary disputes without any official involvement that state or police protection would be available that his claim for non-refoulement protection failed on all applicable grounds. 

16.  On 5 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but in his supporting affirmation of the same date as well as his skeleton submissions dated 26 November 2019 he put forward various grounds for his intended challenge essentially against the Board’s decision which can be summarized as follows:

(1) that the adjudicator was unreasonable in making speculative findings with regard to the assessment of risk in the consideration of his claim;

(2) that the adjudicator failed to properly consider and/or assign the appropriate weight to Country of Origin Information and further failed in his duty of joint endeavor in assessing his claim; and

(3) that the adjudicator made mistake of fact and/or failed to take a relevant factor that his risk of harm emanates from his political opinion generally.  

17.  However, a careful examination of his skeleton submissions reveals various references of what the Applicant claimed to have been made by the adjudicator in the Board’s decision are factually incorrect or simply wrong, as they appear to refer to a totally different case but simply copied or adopted by the Applicant as if they also applied to his own case, as clearly evidenced in all three of his grounds for his intended challenge. 

18.  Under his Ground (1) in which the Applicant argues that the adjudicator had made speculative findings with regard to the assessment of risk, he stated in paragraph 9 of his submission as follows:

“ With regard to the 1^st incident ‘whereby I and my friends were attacked by a number of AL members, the Adjudicator found at §26 that:

“ That my group could manage to escape while being outnumbered shows the AL had no intention to kill or harm seriously to me, especially when one of the attackers was armed with a pistol and had it drawn out to shoot. They had ample opportunity of shooting me …… Surely enough if they intended to kill or harm seriously for me. They could have done so in that incident or could have chosen a better place and time to do it more easily when I was not in the company of friend.” ”

19.  This is however not what was stated in §26 of the Board’s decision where the adjudicator set out her material findings in the evaluation of the Applicant’s evidence, and it is clear that she never made any such statement as above or anything remotely resembling that statement either in that paragraph or anywhere else in the decision.

20.  While the adjudicator did in §20 (e) of the decision refer to the ‘First Incident’ which occurred in January 2010 as mentioned in [5] above in which the Applicant claimed that he together with 400 - 500 JEI supporters were attacked by 800 – 900 AL supporters with wooden sticks, but even on his own case the Applicant never mentioned anything about any AL member drawing out a pistol to shoot.  It was simply not a fact of his case as claimed by the Applicant, nor was it a finding of the adjudicator. 

21.  In support of this ground and arising from that factually incorrect statement in his skeleton submissions, the Applicant proceeded to state as follows:

“ 10. It was open to Adjudicator to reject the facts as presented by me as being implausible and provide reasons for such finding. However, it is evident from paragraph that the Adjudicator had accepted the facts – at no time in § 26 does he raise the issue of credibility or state that my account is implausible (in contrast to my handling of a number of other material facts in the case.

11. Instead, he speculates as to the intention of the perpetrators and the degree of harm they intended to inflict and further, speculate as to how the incident could and should have unfolded, suggesting an alternative scenario (that would presumably support a conclusion that my fear of the AL was justified). Therefore, it was the failure of the incident to confirm to the Adjudicator’s own expectations of what he saw to reasonably or plausibly support a finding of fear which led to a conclusion that my fear was not justified as opposed to any proper assessment of credibility.

12. In the alternative, even if the court is of the view that the Adjudicator rejected my evidence implausible, he did so not on the objective assessment of evidence presented but through speculation and conjecture of what he considered to be more likely which was, in turn, based on his own gut instinct.”

22.  Again these were clearly not the findings of the adjudicator in §26 of her decision, nor for that matter in §25 where she gave her reasons for finding the Applicant’s story not credible.  It seems clear to me that the Applicant was again referring to matters which were never part of his own case, and that he was merely citing such submissions from a different case.  As such, and having considered the adjudicator’s reasons for rejecting the Applicant’s claim based on her adverse findings as to his credibility as set out in §§25 - 26 of the Board’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness committed by the adjudicator, nor do I find any reasonably arguable basis to challenge these findings of the Board.    

23.  As for his complaint under Ground (2) that the adjudicator failed to properly consider or assign appropriate weight to COI and thus failed her duty of joint endeavor to assess his claim, the Applicant stated in his skeleton submissions:

“ 25. … the Adjudicator only referred to one source of COI – namely, the World population Statistics website. This source only provided basic information about the city of Dhaka and could not have assisted the Adjudicator in the assessment of risk beyond providing the barest of facts relating to the viability of internal relocation. It had no bearing on whether I was at risk of political violence from the AL.

26. In the absence of any reference to any COI beyond the aforesaid website (which it is submitted in irrelevant). One can only conclude that the Adjudicator failed to consider any COI whatsoever in the assessment of my Appeal/petition. This was a failure to take into consideration a relevant factor and further a failure in his duty of joint endeavor.

27. In particular, despite I clearly indicating that he feared persecution due to his political views and opinions the Board failed to investigate and/or consider COI related to political persecution in Bangladesh. In particular, Adjudicator placed no weight (nor did he give any reason for disregarding) directly relevant COI that was before the TCAB (provided by the Director or Immigration) which showed the following …”

24.  These submissions of the Applicant that the adjudicator failed to properly consider the relevant COI relating to the viability of internal relocation are again factually incorrect and further reinforce my suspicion that he was merely copying them from another case which also involved political rivalry between JEI and AL in Bangladesh but was of wholly different facts, as it is clear from §§44 – 45 of the Board’s decision that the adjudicator, having found that the Applicant had failed to establish any real risk of persecution in his home area, simply did not find it necessary to consider the issue of internal relocation alternative at all, and hence she never referred to any COI relating to Dhaka as claimed by the Applicant.     

25.  As such, and given her finding against the Applicant’s claim of fear of risk of persecution in his home district as stated above, the adjudicator was in my judgment certainly entitled to find it unnecessary to consider the alternative of internal relocation in the Applicant’s case.  In the premises I do not find this complaint of the Applicant arguable at all for his intended challenge.

26.  As for his last complaint under Ground (3) that the adjudicator made mistake of fact and/or failed to take into consideration of the risk of harm emanates from his political opinion, the Applicant stated in his submissions as follows:

“ 29. From §§13, 23, 28 and 33 of the Decision, it is evident that the Adjudicator considered the basis of my Claim to be the “grudge” harbored by AL and according.  Throughout the Decision he consistently attributes my fear solely to the incident of the 2001, 2014 & 2018 election.

30.  However, I was fear of harm emanates from my membership of the JEI and the risk of harm at the hands of AL members with the confrontation on Election Day merely being a triggering event.

31. By limiting the basis of Claim in this way.  The Adjudicator asked myself the wrong question in the assessment of risk and failed properly assesses the risk of harm from the AL as an opposing political party in the context of political violence in Bangladesh.”

27.  For the same reasons again it is clear from the Board’s decision that the adjudicator never referred to any “grudge” harbored by AL against the Applicant either in those paragraphs or anywhere else in the decision at all, and that it was never even the Applicant’s own case that there was any such “grudge” from AL or its supporters harbored against him.

28.  Nor, for that matter, is it his case of fear of harm from AL due to his political opinion which was again never his case whether as stated or implied in his claim.  There is simply no evidence from him either before the Director or the Board of any threats of harm emanated from his political opinion for the adjudicator to take into account or consideration in assessing the risk of future harm from AL upon his return to Bangladesh.

29.  The fact is that the Applicant’s claim of fear of political persecution was rejected by the Board essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim by the adjudicator during his appeal hearing, and in the absence of any error 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 this complain of his reasonably arguable either.     

30.  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.

31.  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.

32.  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