SARDAR FARUK v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1990/2018

[2020] HKCFI 1224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1990 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 in June 2013 and was arrested by police on 7 July 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 certain members or supporters of rival political party Awami League (“AL”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in District Shariatpur, Bangladesh.  After leaving school he assisted in his parents’ fruit business, got married and raised 2 children, and followed his family’s tradition to become a supporter of the political party Jamaat-e-Islami (“JEI”) regularly attended their meetings and rallies.

3.  One day in January 2012 while he was on his way home from the market, the Applicant was approached by a group of 50 supporters of rival party AL who surrounded his home and demanded that he quit JEI and to join AL, and when he refused, they proceeded to attack him by punching and kicking him, but he managed to flee from the scene to hide in his uncle’s place.

4.  On the next day the Applicant reported the incident to the police, but when no follow-up action was taken by them, the Applicant departed for India in February 2012 where he stayed for several days before returning to Bangladesh.

5.  However, as he was still fearful of further attacks from those AL supporters, he departed Bangladesh again on 17 June 2012 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 28 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.  By a Notice of Decision dated 28 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”).

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 would face any personal real and foreseeable risk of harm from those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that it is doubtful that he had been specifically targeted by those AL supporters when he had held no particular office or post in JEI and that his family such as his parents and siblings who were also all JEI supporters had been living peacefully in Bangladesh without incidents all these years, 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 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 Dhaka where it would be difficult if not impossible for those local AL supporters to locate him.

8.  On 8 September 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 4 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 31 August 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, inconsistent and incredible that it doubted that he had told the truth about his claim, and that in any event in the absence of any evidence of official involvement that state protection would be available to him upon his return to Bangladesh, and with reasonable internal relocation also available for him to move away from his home district to other parts of Bangladesh where he can safely re-establish himself without any real fear of being located by those AL supporters that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 20 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) procedural impropriety in that both the decisions of the Director and the Board are illegal committed with errors of law in dismissing his non-refoulement claim and appeal;

(2) irrationality in the Board’s failure to take into account or putting proper weight on independent relevant COI in assessing the Applicant’s claim;

(3) irrationality in the failure of the Director and the Board to consider the concept of extended state acquiescence regarding state involvement in the Applicant’s case; and

(4) failure in the Director and the Board to properly consider the supporting documents submitted by the Applicant to properly consider that his claim is genuine that he would face a real risk upon being refouled.  

11.  These are however all 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 they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how was the concept of extended state acquiescence relevant to his case.  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 challenge.

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.  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 29 – 37 of its decision with the benefit of hearing him in 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 for him to challenge the finding of the Board.

14.  Furthermore, the fact 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.     

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