HOSSEN SARUAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 3075/2019

[2024] HKCFI 3604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3075 OF 2019

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 32-year-old national of Bangladesh who entered Hong Kong illegally on 15 August 2015 and surrendered to the Immigration Department on 19 August 2015 when he raised a non-refoulement claim for protection on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”) and refused to pay them extortion money. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Nayanagar, District Gazipur, Bangladesh. After leaving school he worked as a salesman in his home district, and supported BNP regularly attended their local meetings and activities such as protests when he and his fellow BNP supporters would frequently encounter violent confrontations from rival AL supporters.

3.  In early 2015, some local AL supporters started to extort money from some BNP supporters including the Applicant, threatening to harm or kill them or to make false charges against them if they refused, and when the Applicant refused to pay them money and thereafter made a report to the police, those AL supporters one night ambushed him and beat him with hockey sticks that he suffered bruises and injuries all over his body and was subsequently taken to the hospital for medical treatments.

4.  As the Applicant became fearful for his life, he left the country for India in March 2015 to avoid further threats from those local AL people until later when he thought it would be safe to return to Bangladesh.

5.  However, one afternoon while he was with some friends in the village bazaar, the same group of local AL supporters again approached him to demand extortion money from him, and one of them pointed a pistol at him warning that next time if he still refused to pay that he would be shot.

6.  Thereafter the Applicant felt it was no longer safe to remain in the country, and so on 8 August 2015 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 15 December 2017 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”).

8.  In his decision the Director took into account of 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 AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those local AL supporters to seriously harm or kill him other than to extort money from him or to have any political reason to specifically target him for harm given that he never held any senior post in the party, 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 reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 157 million people spread across a vast territory of more than 148,000 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 Dhaka or Chittagong where it would be difficult if not impossible for anyone to locate him.

9.  On 29 December 2017, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 13 April 2018 and 29 August 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 October 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local AL supporters that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of those AL people to seriously harm or kill him other than to harass and intimidate him as a supporter of rival political party or to have any political reason to specifically target him for harm given that he never held any senior posts in BNP, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 17 October 2019, 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)  That the Board is in breach of procedural fairness for unlawfully fettering 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 decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

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

(5)  That the Board significantly relied on source of news not officially recognized or were simply hearsays or outdated that with the lack of credible source of information led to groundless speculations that it is safe for the Applicant to return to his country of origin;

(6)  That the hearing bundle was given to the Applicant just a few days before his appeal hearing before the Board with the majority of the documents in English that there was insufficient time for him to prepare for the hearing due to his limited skill in English that it was procedurally unfair to the Applicant.

12.  These are however all just 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 how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, 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, nor was he able to do so at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.

13.  As for his remaining complaint of being provided with the hearing bundle only a few days before his appeal hearing before the boards with the majority of the documents in English and therefore giving him insufficient time to prepare for his appeal, the Applicant did not provide any documentary evidence such as the envelope that contained the bundle or its covering to show its posting date, but in any event most of the documents have earlier already been provided to his lawyer from DLS when he was then still legally represented, while he never raised any such issue during his appeal hearing or requested any adjournment of the hearing or for any further time for his preparation, when in fact that he was able to make proper representation of his case to the Board with the assistance of the interpreter without any problem. As such I do not find any merits in this complaint the Applicant either.

14.  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.

15.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real 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.

16.  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.

17.  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