MILON v. TORTURE CLAIMS APPEAL BOARD

HCAL 205/2020

[2024] HKCFI 1967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 205 OF 2020

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 the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Bangladesh who entered Hong Kong illegally on 21 September 2018 and was arrested by police on 26 September 2018. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed or killed by his paternal uncle and cousin over a land dispute in his home village between his uncle and his father and/or by certain local supporters of the political party Awami League (“AL”) as he supported their rival Jamaat-e-Islami Party (“JeI”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Bhabanipur, District Jhinaidah, Bangladesh. After leaving school he worked as a salesman in his home district where his father had inherited a share of some land in his grandfather’s estate, but which had been held by his paternal uncle who refused to distribute it to his father, and for which his father had launched a legal action in the court but which had taken a long time to proceed.

3.  Meanwhile one day in 2006 his uncle together with his followers came to the Applicant’s home to demand his father to put an end to the court action or else he would harm or kill the Applicant, of which his father then made a complaint to the local police of his uncle’s threat.

4.  A few weeks later one evening in April 2006 his uncle’s son together with several men came to the Applicant’s home and attacked him with wooden sticks and other weapons that the Applicant suffered cuts and bruises all over his body until his neighbours intervened.

5.  After the assault the Applicant became fearful for his life, and upon his father’s advice he fled from his home village to Dhaka to take shelter in his aunt’s home, and on 7 July 2006 he departed Bangladesh for Hong Kong where he stayed until August 2011 when he returned to Bangladesh after being informed by his family that the dispute with his uncle had been resolved.

6.  Upon returning to his home village the Applicant in 2012 started to support JeI regularly attended their local meetings and activities.

7.  During the 2014 general election, while the Applicant together with his fellow JeI supporters were participating in the party’s campaign activities, he was attacked by his uncle’s son who was a AL supporter together with other AL people, but the Applicant managed to make his escape with minor injuries, whereupon he fled to Feni in Mohipal.

8.  However, one day in August 2018 the Applicant was tracked down by his cousin who came to his home with some AL people to attack him with knives, but the Applicant again managed to flee from the scene and escaped to Dhaka, and as he felt it was no longer safe to remain in Bangladesh, the Applicant then departed the country on 6 September 2018 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 11 June 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 12 July 2019 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”).

10.  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 his uncle and cousin or any AL supporters upon his return to as low due to the absence of or low intensity and frequency of past ill-treatment from, that there is no evidence of any threats from any AL supporters other than his cousin or any real intention of his uncle or cousin to seriously harm or kill him over his father’s land dispute with them, that in any event it was a private 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 159 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 working experience to move to other areas of the country away from his home district in large cities such as Chittagong where it would be difficult if not impossible for anyone to locate him.

11.  On 26 July 2019 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 20 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 January 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his paternal uncle over any land dispute in his home village or any threats from any AL supporters that caused him to leave his country to come to Hong Kong to seek protection that it was unable to accept that the Applicant and his family had been involved in any land or property dispute with anyone or that he had been threatened or assaulted by his paternal uncle or any AL supporters over any dispute, and concluded that the Applicant does not face any real chance of harm now or in reasonably foreseeable future from his uncle or cousin or any AL supporters upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 20 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  that the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that resulted in groundless speculations that it is safe for the Applicant to return to his home country; and

(6)  that the hearing bundle for the appeal before the Board was provided just a few days before the appeal hearing with the majority of the documents in English thereby giving the Applicant insufficient time to prepare for his appeal before the Board due to his limited skill in English that he was confused in terms of what was happening at the hearing.

14.  These are however just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what source of news relied on by the Board were not officially recognized or were simply hearsays or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

15.  As for his last complaint of being provided with the hearing bundle for his appeal just a few days before his hearing before the Board, the Applicant did not produce any documentary evidence in support of his such assertion, but even if it were true that the hearing bundle was late, it is clear that most of the documents such as his NCF and record of his interview before the Director had in fact already earlier provided to his lawyer from DLS, and that the Applicant never raised any such issue at his appeal hearing before the Board during which he was also able to make his representations without any problem and with the assistance of an interpreter. As such I do not find any merits in this complaint of the Applicant or that it is reasonably arguable for his intended challenge either.

16.  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.

17.  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 – 72 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.

18.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also agreed and 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.

19.  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.

20.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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