MASUD RANA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2036/2018

[2020] HKCFI 1526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2036 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 48-year-old national of Bangladesh who arrived in Hong Kong on 20 December 2005 with permission to remain as a visitor up to 3 January 2006 when he did not depart and instead overstayed and was arrested by police on 4 June 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain 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 Village Shashidal, Brahmanpara Sub-district, Comilla District, Chittagong, Bangladesh.  After leaving school he ran his father’s garment shop, got married and raised a family.

3.  Prior to his retirement the Applicant’s father used to have to pay monthly extortion money to the local gangsters to avoid any disturbances to his shop or his business.  After his retirement the Applicant took over the running of the shop from his father and continued to make extortion payments to those gangsters. 

4.  However, by late 2005 as the shop business deteriorated, the Applicant started to have difficulty making extortion payments to those gangsters, and one day in September 2005 several of those gang members came to the shop to demand payments from the Applicant, and when he was unable to do so, they proceeded to beat him and to break things in his shop as well as taking all the cash and goods from the shop, and before they left, they threatened to kill the Applicant and close down his shop if he failed to make his payments in future.

5.  After the incident the Applicant became fearful for his life, closed down the shop and fled to Dhaka to take shelter at a friend’s place, but when he heard that those gangsters were still looking for him everywhere, he decided that it was no longer safe to remain in Bangladesh, and so on 5 December 2005 he departed for China, and from there he arrived in Hong Kong as a visitor, and when he overstayed and was subsequently arrested by the police, he raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 14 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.  By a Notice of Decision dated 16 March 2015 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”).

7.  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 it was the Applicant’s own speculation of any further threats from those gangsters after all these years when his father’s shop had already closed down, that in any event 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 of 166 million people spread across a vast territory of more than 140,000 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 where it would be difficult if not impossible for those gangsters to locate him.

8.  By a Notice of Further Decision dated 2 June 2017 the Director again rejected the Applicant’s claim upon receiving and considering further submissions 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”).

9.  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 25 March 2015, and for which he attended an oral hearing on 8 August 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found significant inconsistencies in the Applicant’s evidence that it was not satisfied that he had told the whole truth about his claim or that he would face any real risk of harm from those local gangsters or extortionists upon his return to Bangladesh, and concluded that his claim for non-refoulement protection failed on all applicable grounds.   

11.  On 26 September 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 in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)     that the Director and the Board failed to consider the concept of extended state acquiescence in assessing the Applicant’s fear of harm and threats from those gangsters in extorting money from him;

(2)     that the Director failed to conduct sufficient enquiry into the relevant COI in assessing his claim;

(3)     that the Director and the Board failed to give proper reasons for assessing that there was no BOR 3 risk and/or insufficient basis to support such a conclusion in their assessment of his claim;

(4)     that the Director and the Board failed to take into account the consideration of psychological strain and threats to the Applicant resulting from repeated threats to kill him in rejecting his claim; and

(5)     that the Board failed to provide to him sufficient opportunity to clarify certain elements of his claim and also failed to follow up with pertinent and/or obvious questions.  

12.  These are however mainly 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 Board had erred in their decisions, or in what way did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of extended state acquiescence to his claim, and that it is clearly factually incorrect for him to claim that they had failed to give proper reasons for rejecting his claim under BOR 3 risk as both of them clearly and adequately did so in their decisions.  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 their decisions being clearly and properly identified by the Applicant with sufficient details and particularity, I do not find any of these grounds reasonably arguable for his intended application.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 79 of its decision with the benefit of hearing his oral evidence and his 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.

15.  Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.  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.

17.  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

ALL-1