UDDIN BORHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 984/2017

[2018] HKCFI 2637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 984 of 2017

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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 27-year-old national of Bangladesh who arrived in Hong Kong on 9 February 2015 with permission to remain as a visitor up to 16 February 2015 when he did not depart and instead overstayed until 3 March 2015 when he surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Monagram, District Comilla, Bangladesh until 1995 when he moved with his family to Shah Alibag, Mirpur, Dhaka.  After leaving school with a Bachelor of Business Administration, he worked in his father’s garment business and followed his father’s footstep to support Bangladesh Nationalist Party (“BNP”) by joining its youth wing Jubo Dal (“JD”) as its publicity secretary distributing flyers and putting up posters of the party in his area in BNP’s election campaign against the AL local leader IHT in the Mirpur zone.

3.  After winning the general election in January 2014 and becoming the ruling party, the AL government started to arrest and persecute members and supporters of opposition parties including BNP, and when the applicant heard that he was amongst the targets of IHT in Mirpur and that his father had gone into hiding in Turag City, he therefore fled to Comilla in November 2014 to hide in his uncle’s place, and later to his aunt’s home in January 2015 in Dhaka, and eventually on 9 February 2015 he departed Bangladesh for Hong Kong, and when he heard that his father had since been arrested by the police in Bangladesh and that an arrest warrant had also been issued against him, the applicant feared that his life would be in danger and therefore overstayed in Hong Kong and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department with legal representation from the Duty lawyer Service.     

4.  By a Notice of Decision dated 28 July 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 (“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”).

5.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real risk of the applicant being harmed or killed by the AL people upon his return to Bangladesh due to the absence of any past ill-treatment from them, that there is no reliable or objective evidence that the AL people or the government of Bangladesh were pursuing the applicant given his young age and low position in BNP party at the time and that he was able to leave Bangladesh without difficulty, that reliable and objective Country of Origin Information (“COI”) show that reforms have been on-going in Bangladesh to protect the rights of its citizens including for legal assistance and for legal justice through court proceedings, and 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 and highly educated young man with work experience to move to other areas away from his home district such as Sylhet or Rajshahi where it would be difficult if not impossible for his perceived enemies to locate him.

6.  On 11 August 2017 the applicant lodged his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 24 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 17 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board upon hearing the applicant in evidence did not accept that he was a credible or reliable witness, that there was no credible or reliable evidence from him as to why IHT or the AL people would want to harm him given his political activities in his home area in Bangladesh being limited to distributing flyers and putting up posters, that there was no evidence that the government and/or state and/or other authorities in Bangladesh had pursued him for any political reasons or to have acquiesced in any ill-treatment of him, or that he has suffered any physical or mental suffering of the requisite severity, and concluded that he has failed to show that he had a well-founded fear of being harmed or killed under any of the applicable grounds.   

8.  On 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the Board erred in failing to maintain high standard of fairness by not providing him with the hearing bundle and skeleton argument of the Director within a reasonable time with interpretation before his appeal hearing to enable him to properly prepare for his appeal before the Board;

(2)  that the Board failed to maintain the minimum standard of procedural fairness in its decision-making process; and

(3)  that the Board failed to take into consideration when making its decision that the applicant was not legally represented and with insufficient legal knowledge to make proper representation at his appeal hearing, and failed to inform him that he could complain.  

9.  The applicant requested for an oral hearing for his application, but failed to appear at the scheduled hearing on 29 August 2018 for which he subsequently wrote to explain that he had a medical condition on that morning that required treatment in a government hospital, and submitted a medical certificate issued by the Hospital Authority confirming that he was suffering from a back injury, but when he again failed to appear in the re-scheduled hearing on 3 October 2018 without any explanation, I decided to proceed to deal with his application in his absence.  I now turn to the proposed grounds for his application.

10.  These are however mostly 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 fail to apply or maintain high standard of fairness in assessing or considering his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

11.  As for his complaint 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 in English without interpretation and thereby given him insufficient time to prepare for his appeal, 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, record of his screening interview and the Director’s decision should be well familiar to the applicant as they had earlier all being already 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.

12.  The fact is that the applicant’s claim was rejected by the Board essentially on his credibility when the adjudicator had had the benefit of hearing him in evidence and for the detailed analysis and reasoning set out in paragraphs 18 – 56 of the Board’s decision, and on the basis of the evidence and information available the adjudicator was certainly entitled to arrive at her decision in which the applicant has failed to show any error or procedural unfairness.

13.  As has been repeatedly emphasized by the Court of Appeal, 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 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 Re Litoun Mounsy [2018] HKCA 537.

14.  In the premises and having proceeded to consider 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.

15.  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