MUJIBUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 402/2020

[2023] HKCFI 1569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 402 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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Bangladesh who entered Hong Kong illegally on 13 March 2016 and was arrested by police on 22 March 2016. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the local supporters of the political party Awami League (“AL”) as he supported their rival Jamaat-e-Islami (“JEI”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kutubpur, District Noakhali, Bangladesh. While at school he joined the student organization Bangladesh Islami Chhatra Shibir which is the student wing of JEI regularly attended their meetings and activities at school, during which he and his fellow students would from time to time come into conflicts with members of the student wing of rival AL when they would sometime fight with wooden sticks against each other.

3.  After leaving school the Applicant continued to support JEI while operating a flower shop in Begumganj, but one day in 2000 he was arrested by police as the local AL supporters had made some false charges against him, and during police detention he was beaten by police officers before subsequently being released on bail pending trial which took several years but eventually those false charges were dismissed by the court.

4.  To avoid further harassments from the local AL supporters, the Applicant in 2005 left Bangladesh to work in United Arab Emirates for 6 years before returning to Bangladesh in 2011.

5.  However, upon returning to his home district, the Applicant continued to receive threats and harassments from those local AL supporters, and so he fled to Dhaka, and on 12 August 2012 he departed Bangladesh for China, and from there he later sneaked into Hong Kong, and after his arrest by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 19 December 2018 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reasonable likelihood that the risk of harm from those local AL supporters as perceived by him upon his return to Bangladesh is real and substantial due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to specifically target him for harm or to have any adverse interest in him given that he was just an ordinary supporter of JEI with no official 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 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 Dhaka where it would be difficult if not impossible for anyone to locate him.

8.  On 27 December 2018 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 7 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 March 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of participation in political activities during his student days and may have come into conflicts with supporters of rival political parties such as AL but found no reliable evidence or reasons for any of them to specifically target him or to have any adverse interest in him all these years since he left the country, and that in any event in the absence of any evidence of official involvement that state or police protection would be available to the Applicant upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other areas 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.

10.  On 13 March 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds and complaints for his intended challenge which can be summarized as follows:

(1)  Procedural unfairness in failing to provide legal representation for his appeal to and before the Board;

(2)  Procedural unfairness in failing to provide an oral hearing for his appeal before the Board;

(3)  Procedural unfairness in failing to provide language assistance or interpreter to interpret and explain the decision to him so as to enable him to have proper understanding of the reasons for rejecting his claim and dismissing his appeal;

(4)  That the Board merely adopted a formula and biased approach in assessing his claim especially in relying on the same COI in assessing the overall condition of Bangladesh including the ineffectiveness of the police and their corruption and that it is not sufficient just to show that reforms have been going on in Bangladesh to conclude that there is efficient implementation of law and reforms in the country;

(5)  That the Board erred in its assessment that the Applicant can relocate to other areas of Bangladesh which is unreasonable and unacceptable to expect him to run away from his problems and to live in hiding for the rest of his life;

(6)  That the Board failed to thoroughly take all the relevant facts into consideration and also made baseless assumptions towards the Applicant’s case that state protection would be available to him upon his return to Bangladesh which is simply not true.

11.  For his complaint under Ground (1) of not being provided with legal representation for his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

12.  In the present case, the Applicant already had the benefit of legal representation in presenting his case to the Director during the first-tier screening of his non-refoulement claim, and that at his appeal hearing he was able to testify and make representations of his claim before the Board and to answer questions raised of his claim by the Adjudicator without difficulty with the assistance of an interpreter. As such I do not find anything amiss arising from the lack of legal representation in his appeal process before the Board, nor do I find this ground reasonably arguable for his intended challenge.

13.  As for his complaint under Ground (2) of not being provided with any oral hearing for his appeal before the Board, it is clearly factually incorrect as such a hearing was indeed provided on 7 November 2019 when he as noted above did appear before the Board to make representations for his claim and appeal, and hence this ground is clearly not arguable at all for his intended challenge.

14.  The same can also be said about his Ground (3) in which he complains of not being provided any translation or interpretation of the Board’s decision which even if true cannot per se be accepted as any valid challenge of the decision, and of which it appears that he did have assistance in his present application, or that he could have easily sought assistance from the Board for the decision to be interpreted and explained to him upon receipt thereof from the Board.

15.  As for the rest of his complaints under Grounds (4) to (6), they are just some vague and bare assertions of the Applicant 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 how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way did the Board err in its assessment of the availability of state protection or internal relocation to the Applicant upon his return to his home country. As such and as none of these assertions were 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 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.  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.  Furthermore, the Applicant has recently written to request to withdraw his application as it is now safe for him to return to his home country.

20.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is now safe for him to return to his home country, I accordingly dismiss 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