FARUQUE MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1512/2018

[2020] HKCFI 228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1512 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 47-year-old national of Bangladesh who last arrived in Hong Kong on 10 July 2006 with permission to remain as a visitor up to 24 July 2006 when he did not depart and instead overstayed and was arrested by police on 9 October 2006.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by his creditors for failing to repay his loan, and after it was rejected by the Immigration Department, he then sought non‑refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Khorakitola, Saidabad, Dhaka, Bangladesh. After leaving school he worked as a farmer in his home village.  In 2001 he travelled to China, and from there he later travelled to Hong Kong where he subsequently overstayed, for which he was later arrested, charged and convicted with a suspended sentence, and was then repatriated to Bangladesh.

3.  Upon returning to his home village, he worked in his father’s bakery shop and in 2002 he was allowed to run the shop, and so in 2003 he borrowed a loan from two acquaintances for the purpose of expanding the bakery shop, with the loan repayable by periodical instalments, but one day in 2005 he had a dispute with his creditors over repayment of his loan which turned into a fight between them, during which he was punched and kicked by his creditors who also snatched some money from his shop, and before they left, they demanded that he should pay up his loan as soon as possible.

4.  After the incident the Applicant reported the matter to the police but it appeared that no follow-up action was taken, and as his creditors had connections with the local gangsters, the Applicant therefore fled to Munshigonj to take shelter at his aunt’s place without further incidents, but later when he heard that his creditors had continued to come to his home looking for him, and when they could not find him, they made threats against his family, and claimed to have made a false charge against him to the police, the Applicant decided that it was no longer safe to remain in Bangladesh, and so on 26 April 2006 he departed for China, and from there he later gained entrance into Hong Kong with a false passport, and after he was arrested by police, he raised his torture claim and after it was rejected in 2011, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 12 April 2016 with legal representation from the Duty Lawyer Service, but failed to attend the subsequent screening interviews before the Immigration Department allegedly due to health reasons.

5.  Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by the police on 26 August 2011 for using the false passport for his entrance into Hong Kong in 2006, but he later absconded from the court hearing until 25 May 2015 when he was arrested again, and was subsequently convicted and sentenced to prison for 11 months.      

6.  By a Notice of Decision dated 27 January 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except his torture claim but included 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”).

7.  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 he will be in danger of being harmed or killed by his creditors or by the Bangladesh authorities upon his return to Bangladesh due to absence of any real intention on the part of his creditors to kill him other than to put pressure on him for repayment of his loan, that there is no evidence that the police were after him, that it was a private monetary dispute between the Applicant and his creditors 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 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 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 Chittagong or Munshigonj where he had stayed before without incidents and where it would be difficult if not impossible for his creditors to locate him.

8.  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 24 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s evidence vague and unsubstantiated about his claim of the loan dispute which allegedly caused him to flee his home country, and that in any event in the absence of any evidence of any official involvement in the alleged dispute between the Applicant and his creditors that state or police protection would be available to the Applicant, as well as reasonable internal relocation for the Applicant to move to a different part of Bangladesh to safely reestablish himself without any risk of being located by his creditors that his claim for non-refoulement protection failed on all applicable grounds.     

10.  On 31 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)      procedural unfairness in that the Board had unlawfully fettered its discretion in refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)      procedural unfairness in that the adjudicator had acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)      procedural unfairness in the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)      procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)      that the Board had significantly relied on source of news not officially recognized or was simply hearsay or outdated which resulted in it making groundless speculations that it would be safe for the Applicant to return to his country of origin; and

(6)      that the hearing bundle for his appeal was provided to the Applicant just six days before his appeal with the majority of the documents in English without translation thereby given him insufficient time to prepare for his appeal or to find proper interpreter to assist him in his appeal before the Board.  

11.  These are however all 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 unlawfully fetter its discretion or acted in a procedurally unfair manner, or what sources of news relied on by the Board were not officially recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended application.

12.  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.

13.  The only other complaint which the Applicant appeared to have made with any elaboration was 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 were in English and thereby given him insufficient time to prepare for his appeal.

14.  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 SCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his SCF 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.

15.  Essentially the Applicant’s claim was rejected by the Board on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 19 – 32 of its decision with the benefit of hearing his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law 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 any reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, 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