HOQUE AHIDUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1061/2018

[2021] HKCFI 1767

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1061 of 2018

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 oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Bangladesh who entered Hong Kong illegally on 11 September 2015 and was arrested by the police on the same day. 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 local supporters of the rival political party Awami League (“AL”) and/or by the police over certain false charges against him. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Poschim Kanaimadari, District Chittagong, Bangladesh. While at school he joined the student wing of the political party Bangladesh Nationalist Party (“BNP”) regularly attending their local rallies and election campaigns, and after leaving school he continued to be a BNP supporter.

3.  In 2014 AL won the general election and became the ruling party, and during a BNP’s organized street protest in January 2015 attended by the Applicant and his fellow BNP supporters, they were confronted by AL supporters, and when the police arrived to try to disperse the protesters, the Applicant was struck by the police with wooden sticks that he suffered injuries and fled from the scene.

4.  After the incident and when he heard of mass arrests by the police, the Applicant therefore took shelter in a friend’s place in Chittagong, but after another incident when he ran into a group of AL supporters in the street and was attacked by them, he became fearful for his safety, and therefore on 12 August 2015 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 June 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

5.  By a Notice of Decision dated 28 July 2017 the Director of Immigration (“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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of 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 there is no evidence or reason for him to be specifically targeted by those AL supporters given that he was just an ordinary BNP supporter with no official post in that party, that there is no evidence that he was wanted by the police or the Bangladeshi authorities, that 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”) shows 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 140,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other parts of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those local AL supporters to locate him.

7.  On 10 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 1 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 4 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant to be a poor witness with scant details for his claim, and that his response to requests to clarify or provide further details were so vague and evasive that it found his claim unsupported by any objective evidence amounted to little more than a series of bald and frequently contradictory assertions that they were not accepted as credible, and that it did not consider there is any real risk of harm to the Applicant from his claimed AL enemies or the police upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 11 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached copies of all the documents from his appeal bundle before the Board but without putting forward any proper ground for his intended application, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 his intended challenge.

10.  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 ChamindaPushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  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 74 – 96 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.  

12.  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 if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.  

13.  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.

14.  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