HCAL 526/2018
[2019] HKCFI 1014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 526 of 2018
BETWEEN
Siddik Abu
Applicant
and
The Adjudicator of the
1st Putative Respondent
Director of Immigration
2nd Putative Respondent
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan :
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 29-year-old national of Bangladesh who entered Hong Kong illegally on 30 July 2014 and was arrested by police on 13 August 2014. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his eldest brother over a land dispute and/or by the supporters 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 Gourstan Mazarpara, District Lohagara, Chittagong, Bangladesh, and whilst at school he joined the political party Islami Chhatra Shibir (“ICS”) actively promoting the party’s ideology in his home village. After leaving school he worked in a shop in Chittagong and continued to participate in his party’s activities.
3. In about 2012 the applicant began to be harassed and threatened by AL supporters whenever he ran into them in the village who would demand that he quit his party to join AL, while his eldest brother who was also a AL member would frequently have dispute with him over their father’s farmland in the village which his eldest brother wanted to keep for himself and on which he had built a house for his own use to the exclusion of other siblings, and had threatened to kill the applicant should he raise any dispute over the land.
4. One day in January 2014 while the applicant was crossing the farmland, he was confronted by his eldest brother and some of his men and was forcibly pushed into a car and driven blindfolded to a place where he was kept in a dark room and was beaten by his eldest brother with a wooden stick all over his body, and was released after his eldest brother had had some telephone conversations with his father and the local leader of ICS, but not before he was warned that next time he would be killed for raising any further dispute over the land and for refusing to join AL.
5. After he fled home the applicant was taken to the hospital for treatment to bruises and swelling on his body, and was advised by his father to leave Bangladesh for his own safety, and so he first fled to Dhaka where he hid in a hotel for several months without any incidents before departing Bangladesh on 11 May 2014 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 1 March 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.
6. By a Notice of Decision dated 6 April 2016 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 (“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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his eldest brother or the AL people to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that his dispute with his eldest brother was a private family matter and given his low position in ICS it is unlikely that he would be specifically targeted by the AL people, 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”) 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 young man with work 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 his elder brother or the AL people to locate him.
8. By a Notice of Further Decision dated 12 May 2017 the Director again rejected the applicant’s claim in the absence of any response 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 18 April 2016, and for which he attended an oral hearing on 2 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 2 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
10. In its decision the Board found discrepancies and flaws in the applicant’s account of events in Bangladesh in particular his membership and participation in ICS which seriously undermined the reliability of his claim, that there was no reliable evidence that he had joined ICS as a member when he was a student, or that his eldest brother had any connection with AL, or that the applicant was ever kidnapped or attacked in January 2014 as alleged, or that he had had any dispute with his eldest brother over any farmland in which he had admitted at the hearing of having no interest at all, or that he had ever been tortured or ill-treated by anyone, and concluded that there is no reliable evidence that the applicant had any well-founded fear of any risk under any of the applicable grounds before he left Bangladesh.
11. On 29 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely exhibited copies of those decisions and other documents from the hearing bundle for his appeal before the Board, and at the hearing of his application before me he conceded that he is unable to put forth any ground for his intended challenge against either decision, and that he just wants the Court to review his case.
12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasions for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the processing 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 Re Litoun Mounsy [2018] HKCA 537 .
13. In the applicant’s case, the Board rejected his claim based on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in §§57 – 76 of its decision after having had the benefit of hearing him in evidence and his answers to questions raised by the adjudicator of his claim at his oral hearing, and in the absence of any legal error or procedural unfairness being identified by the applicant, I do not see any reasonably arguable basis to challenge the finding of the Board.
14. Furthermore, the fact 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 subsequently affirmed by the Board, I agree that 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.
Dated the 31st day of May 2019.
(NG Ka-wing)
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
Notes for the Applicant :
If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
Sent to the Applicant on 31 May 2019
Siddik Abu
Applicant’s ref. no.:
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 31 May 2019
The Adjudicator of the Non-refoulement Claims Petition Office st Putative Respondent’s ref. no.:
Director of Immigration nd Putative Respondent’s ref. no.:
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1