M.A. JALIL v. SIMON RUSSELL, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 1223/2018

[2019] HKCFI 2590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1223 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 39-year-old national of Bangladesh who last arrived in Hong Kong on 7 June 2006 with permission to remain as a visitor up to 14 June 2006 when he did not depart and instead overstayed until his arrest by the police on 28 September 2007.  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 supporters of Awami League (“AL”) over some monetary dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Golora, Chor Khondo, Jagir, Manikgonj,Bangladesh.  After leaving school, he worked as a general labourer, and became a supporterof the political party Bangladesh Nationalist Party (“BNP”) regularly attended their meetings and rallies, during which he and his fellow supporters also experienced regular conflicts with supporters of rival party AL in his home village.

3.  One day in late 2005 the Applicant was hired by two villagers whom he knew were AL supporters to deliver some grocery goods to the bazaar in Manikgonj.  The Applicant therefore arranged for a driver to do so.

4.  Several days later the two AL villagers came to the Applicant to demand for compensation for their goods as they claimed that the driver did not deliver the goods and had disappeared. When the Applicant insisted that it was not his fault and refused to pay any compensation, they warned him that there would be serious consequences and left angrily.

5.  Several days later while the Applicant was on his way home from work, he was ambushed and attacked by several AL supporters with punches and kicks that he lost consciousness and was subsequently taken to a local clinic for medical treatments.

6.  After the incident the Applicant became fearful for his life and fled from his home village to take shelter at his friend’s place in a neighbouring village, but when he heard that those AL supporters had come to his home looking for him with threats that if he failed to pay the compensation to them, they would find him and kill him, he then fled to Dhaka where he made arrangements to leave Bangladesh, which he eventually did in May 2006 when he departed for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 26 January 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 (“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”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between them 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 (“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 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other partof Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those AL supporters to locate him.

9.  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 23 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s evidence of his claim vague, lack of coherence, and implausible that it was not willing to attach any credence to his assertions of events occurred prior to his departure from his home country or that he will face any real risk of any form of harm in Bangladesh, and that in any event with state protection and reasonable internal relocation available within Bangladesh that it would not be unreasonablefor him to move elsewhere away from his home district where he will not face any real risk of harm upon return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 28 June 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) misdirection in the law in holding that the Applicant had to have experienced torture in the past in order to establish substantial grounds for believing that there was a risk of torture in the future;

 (2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

 (3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

 (4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

 (5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

 (6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

 (7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

 (8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

 (9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

12.  These are however all very 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 adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while his complaint of misdirection of law by the Board on torture is wholly misplaced as even on his own case that his dispute with those AL supporters was one of personal monetary matter with no official involvement that any claim of torture simply cannot substantiate.

13.  As has been repeatedly emphasized by the Court of Appeal, 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.  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.

15.  Even if it is true that the hearing bundle indeed came to him late as alleged, and theApplicant 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 NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant asthey had earlier all being already made available to him when he still had legal representation,whilst his NCF 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.

16.  As a matter of fact, his claim was rejected by the Board essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 17 – 24 of the Board’s decision with the benefit of hearing him in his evidence and his answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in his process before the Board and 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. 

17.  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.

18.  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.

19.  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