NASIRUDDIN MIAH v. DIRECTOR OF IMMIGRATION

HCAL 1421/2018

[2020] HKCFI 544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1421 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 46-year-old national of Bangladesh who entered Hong Kong illegally on 15 June 2008 and was arrested by police on 13 July 2008. 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 local supporters of rival political party Bangladesh Nationalist Party (“BNP”) 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 Rasulbagh, District Narayanganj, Bangladesh. After leaving school he worked as a salesman, married his wife and raised a family of two children.

3.  In 1980 the Applicant followed in the footsteps of his father to become a supporter of political party Awami League (“AL”) without being a party member and merely attended its local meetings and rallies.

4.  In 1991 there were major conflicts between BNP and AL which led to violent fights between their supporters, and during one of which the Applicant was accused of being involved in the death of a BNP supporter that he was subsequently sentenced to prison for six years.

5.  Upon his release from prison the Applicant went to Dhaka where he ran a grocery store and continued to participate in AL activities.  One day in 1997 when he was visiting his family in Narayanganj, he was confronted by some local BNP supporters who demanded that he should leave AL and to join BNP, and when he refused, they proceeded to assault him by punching and kicking him, and before they left, they warned him that if he still refused to join BNP, they would assault him again.

6.  Afterwards the Applicant reported the assault to the local police, but when there did not appear to be any action taken by the police, he therefore returned to Dhaka.

7.  On another occasion in December 1997, when he was visiting his family in Narayanganj, he was again confronted by several BNP supporters over their demand for him to join their party, and when he refused, they again assaulted him with punches and kicks but he managed to escape back to Dhaka without serious injuries.

8.  On another occasion in 1999 when he returned to Narayanganj to visit his family,he was arrested by police after some BNP supporters had made false charges against him for extortion when he was detained at the local police station during which he was beaten by some of the policemen with batons, and it was only on the following day after he was brought to the court when he was granted bail and was released, but he was later arrested again for tempering with witnesses and was eventually convicted and sent to prison until 2002 when he was released and returned to Dhaka.

9.  While he remained in Dhaka for the next five years without further incidents, as hewas informed by his family that those BNP supporters were still looking for him everywhere,he felt it was no longer safe to remain in Bangladesh, and so on 27 April 2007 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 13 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 28 March 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”).

11.  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 local BNP supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them,that there is no reason for them to target the Applicant as he had stopped being involved inAL politics since 2002 that there is no reason why they would still have any adverse interest in him, that there is no evidence that he was still being pursued by the police after having served his time in prison, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliableand 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 part of Bangladesh away from his home district such as Dhaka or Chittagong where it would be difficult if not impossible for those local BNP supporters to locate him.

12.  On 7 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended two oral hearings on 9 and 16 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s account of events prior to his departure from Bangladesh and that the documentaryevidence produced by him in support of his claim was not accepted as a genuine document that it rejected his case in its entirety including his alleged involvement in AL and his alleged fear of risk of harm from the BNP supporters, and concluded that there is no risk of him being harmed or killed upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

14.  On 19 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the decisions of both the Director and the Board, but no ground for seeking reliefwas given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would still be in danger in his home country, and that it would be a travesty of justice and contrary to natural law and spirit of common humanity and brotherhood to refuse his claim and evict him from Hong Kong, but without providing any further particulars or specifics or elaboration why it was so.  As such I do not accept that the Applicant has presented any reasonably arguable ground 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 107 of its decision with the benefit of hearing him in his oral testimony and his answers to questions raised of his claim during his appeal hearing before the Board,and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

17.  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 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.

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