SHEIKH MD ROMJAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 830/2018

[2020] HKCFI 2229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 830 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 37-year-old national of Bangladesh who entered Hong Kong illegally on 7 August 2015, and on 12 August 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his former wife’s family over certain personal disputes.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kholapara, Baligaon, Gouhajang, Munshignaji, Bangladesh.  After leaving school, he worked in a local grocery store in his home village before finding a job as a rigger in Dubai for several years.

3.  In 2010 he married his wife from Chittagong where her father was a businessman with political connections and that her family were all supporters of the political party Awami League (“AL”).

4.  While working in Dubai, the Applicant would send his income to his wife in Bangladesh, but in 2012 upon his return home, he discovered that all the money had disappeared, and when he raised the matter with his wife, they would end up quarrelling when his wife would leave home to return to her family until he pleaded for her return.

5.  Eventually after another quarrel with the Applicant in July 2012, his wife again returned to her parents’ home and refused to return, and that her father would send men to the Applicant’s home to threaten him which caused him to flee to a neighbouring village, but later when his wife’s family made a false claim against him to the police, the Applicant therefore yielded to their demand to divorce his wife and to pay her family a large sum of money as compensation in exchange for their withdrawal of their case from the police.

6.  Upon divorcing his wife, the Applicant in late 2012 married and started a garment shop in his home village, but when his former wife’s family kept coming to his shop to demand for more money with threats to harm him and his new family, the Applicant sold his shop and moved his family to Faridpur in 2014, but when he heard that his former wife’s family were still looking for him everywhere, he felt it was no longer safe to remain in Bangladesh, and so on 2 July 2015 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 9 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 11 August 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”).

8.  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 his former wife’s family upon his return to Bangladesh as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention on their part to harm or kill him, that in any event that these were private personal 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 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 Khulna where it would be difficult if not impossible for his former wife’s family to locate him.

9.  On 24 August 2017 the Applicant 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 8 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found inconsistencies in the Applicant’s evidence about his claim but was prepared to accept he claim of having disputes with his former wife’s family which were private personal matters and cannot form any proper basis for non-refoulement protection, and that in any event in the absence of any official involvement that state or police protection would be available to him upon his return to Bangladesh as well as reasonable internal relocation within Bangladesh for him to move safely to other area away from his home district without any risk of being located by his former wife’s family that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 14 May 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 no ground for seeking relief was given in his Form or in his supporting affirmation of the same date which he merely attached copies of the decisions and other documents previously submitted for his claim without putting forward any proper ground for his intended application, nor did he request any oral hearing for his application, but on 20 May 2020 he filed a written submission in which he put forward the following grounds for his intended challenge:

(a)   that the adjudicator was unreasonable in making speculative findings with regard to his assessment of risk when he in fact had accepted the fact of the “1^st incident” whereby the Applicant and his friends “were attacked by a number of AL members”at paragraph 26 of the decision when the adjudicator instead “speculated on the intention of the perpetrators and the degree of harm they intended to inflict, and further speculated as to how the incident could and should have unfolded suggesting an alternative scenario that could presumably support a conclusion that the Applicant’s fear of the AL was justified”;

(b)   that the adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endeavor, and instead he only referred to one source of COI namely the World Population Statistics Website which only provided basic information about the city of Dhaka and could not have assisted him in the assessment of risk beyond providing the barest of facts relating to the viability of internal relocation which had no bearing on whether the Applicant was at risk of political violence from the AL; and

(c)   that the adjudicator made mistake of fact and/or failed to take a relevant factor namely that the Applicant’s risk of harm emanates from his political opinion generally when the adjudicator in “paragraphs 13, 23, 28 and 33 of the decision” considered the basis of the Applicant’s claim to be the “grudge” harboured by AL and accordingly throughout the decision he consistently attributed the Applicant’s fear solely on “the incident of the 2001 and 2004 and 2019 election” when in fact the Applicant’s fear of harm “emanates from his membership of BNP and the risk of harm at the hands of AL members with the confrontation on Election Day merely being a triggering event”.  

12.  However, upon close scrutiny all these grounds appear to me to have been borrowed from somebody else’s case for use in the Applicant’s own, as those references as to paragraphs 26 under Ground (a) or paragraphs 13, 23, 28 and 33 under Ground (c) clearly do not conform with those in the Board’s decision in the Applicant’s case, or for that matter of the Director’s decision, as the Applicant’s claim even on his own case involved a personal dispute with the family of his former wife over monetary matter and not of any political elections involved with the AL members as mentioned in these grounds, while I do not find anything wrong with the reliance of both the Director or the Board on the relevant COI including World Factbook of US Central Intelligence Agency, and not the “World Population Statistics Website”  mentioned under Ground (b) as to the option of internal relocation within Bangladesh available to the Applicant.  As such none of these grounds are relevant to the Applicant’s claim, 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, I do not find any reasonably arguable basis for his intended challenge.

13.  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.

14.  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.

15.  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.

16.  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