KAMAL HOSSAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1351/2018

[2021] HKCFI 1631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1351 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Bangladesh who last arrived in Hong Kong with a false identity on 1 April 2006 with permission to remain as a visitor up to 15 April 2006 when he did not depart and instead overstayed and was arrested by the police on 1 November 2006. 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 his former customers for failing to repay their deposits after his travel agency business had failed. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Chashapara, Comilla, Bangladesh. After leaving school, he worked in travel agencies, married his wife and raised a family of 2 children in his home district.

3.  In 2000 he established his own travel agency in Dhaka with a friend as his partner, but in 2002 due to some problems concerning the visa applications for his customers which the Applicant had subcontracted to another company for the service but which turned out unsuccessful, and when his customers demanded for the return of their deposits, the Applicant was unable to do so, and so he came to Hong Kong in November 2004 under a different name with plan to start some other business, but after he was cheated of his money, he overstayed in Hong Kong and was subsequently arrested by the police and was deported back to Bangladesh in October 2005.

4.  Upon returning to Dhaka, his former customers continued to demand for their money, but the Applicant was still unable to comply, and after he had been assaulted by some of his former customers on several occasions, he became fearful for his life, and so on 10 March 2006 he again departed Bangladesh for China, and from there he travelled to Hong Kong on 1 April 2006 as a visitor and subsequently overstayed, and upon his arrest by the police, he then raised his torture claim later taken as a non-refoulement claim for which he completed a Non-refoulement Claim Form (“NCF”) on 19 May 2015 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 20 October 2015 the Director of Immigration (“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 Ordinance, Cap 383 (“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 found no substantial grounds for believing that he will be harmed or killed by his former customers upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that his problems with them were private monetary disputes 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”) shows that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 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 with working experience to move to other parts of Bangladesh away from his home district in large cities such as Chittagong where it would be difficult if not impossible for him to be located.

7.  By a Notice of Further Decision dated the 13 December 2016 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”).

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 27 October 2015, and for which he attended an oral hearing on 15 February 2017 before the Board during which he did not testify after adopting his evidence previously provided to the Director and as set out in the hearing bundle for his appeal before the Board. On 9 July 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the accounts previously given by the Applicant to the Director that in the absence of any further clarification from him at his appeal hearing before the Board that it doubted the credibility of his claim, but it found in any event that his alleged problems with his former customers if true were private monetary disputes without any official involvement that state/police protection would be available to him upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

10.  On 11 July 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 or supporting affirmation of the same date, but in his subsequent skeleton submissions dated 5 October 2020, he put forward the following grounds for his intended challenge:

(1) that the Adjudicator was unreasonable in making speculative findings with regard to the assessment of risk;

(2) that the Adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endeavor; and

(3) that the Adjudicator made mistake of fact and/or failed to take a relevant factor that the Applicant’s risk of harm emanates from his political opinion generally.

11.  However, a careful examination of skeleton submission reveals that many of the facts and matters cited or referred therein appear to be wholly irrelevant or different from the stated facts of the Applicant’s claim even based on his own case, such as the followings:

(a) Para 9: “With regard to the ‘1^st incident’ whereby me and my friends were attacked by a number of AL members … That my group could manage to escape while being outnumbered shows the AL had no intention to kill or harm seriously to me, especially when one of the attackers was armed with a pistol and had it drawn out to shoot …”

(b) Para 27: “In particular, despite I clearly indicating that he feared persecution due to his political views and opinions …”

(c) Para 30: “However, I was fear of harm emanates from my membership of the JATIYO PARTY and the risk of harm at the hands of AL members with the confrontation on Election Day merely being a triggering event.”

(d) Para 31: “… The Adjudicator asked myself the wrong question in the assessment of risk and failed properly assess the risk of harm from the AL as an opposing political party in the context of political violence in Bangladesh.”

(e) Para 32: “The Adjudicator’s failure to properly set out and assess the feared harm arising from my political opinion in Support of Jatiyo party generally was a failure to address a Central and material issue in my Appeal/petition.”

12.  Even on his own case at the highest, the Applicant’s claim was premised only on threats from his former customers over money owed to them as a result of his failed travel agency business, which has nothing to do with any political issues of his with any political party in Bangladesh. It seems to be a case of the Applicant just coping those submissions from the case of some other asylum seeker from Bangladesh but based on an entirely different set of facts that none of the arguments in the skeleton submissions are relevant or applicable to the Applicant’s case.

13.  Nevertheless, if one were still to apply those 3 proposed grounds to the Applicant’s case, in the absence of any further details or particulars or elaborations from the Applicant, none of them are in my view reasonably arguable, as they are simply factually incorrect in particularly with the latter two grounds for the reasons already given above, and that as evidenced in paragraphs 59 – 64 of the Board’s decision, the Adjudicator clearly did take into consideration a number of COI materials in the assessment of the options of state protection and internal relocation available to the Applicant rather than just one source of COI as asserted by the Applicant in paragraph 25 of his skeleton submissions.

14.  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 who also failed to attend the scheduled hearing of his application without any explanation, I do not find any reasonably arguable basis for his intended challenge.

15.  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.

16.  In the Applicant’s case, 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 parts 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.

17.  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.

18.  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