ISLAM MOHAMMAD JAHIRUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 818/2018

[2020] HKCFI 2228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 818 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 32-year-old national of Bangladesh who entered Hong Kong illegally on 11 May 2013 and was arrested by police on 13 May 2013.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of rival political party Awami League (“AL”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Salimpur, Trishal, Mymensingh, Bangladesh.  After leaving school he assisted in his father’s electrical shop in his home district, and became a supporter of the political party Bangladesh Nationalist Party (“BNP”) regularly attended their local meetings and rallies, during which he and his fellow BNP supporters would frequently come into conflicts with rival AL supporters.

3.  On one such rally in June 2012 in his home village, the Applicant and his fellow BNP supporters were attacked by a group of AL supporters with hockey sticks and other weapons during which he was struck on the back but managed to make his escape from the scene without serious injury.

4.  After the incident, the same group of AL supporters had on several occasions come to the Applicant’s home shouting threats from outside his house, and to avoid further harassments, the Applicant took shelter in his neighbour’s home, but when those AL supporters kept threatening to seek him out for harm, the Applicant decided it was no longer safe to remain in Bangladesh, and so on 22 February 2013 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest he raised his torture claim and then non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 2 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  While released on recognizance pending determination of his claim, the Applicant was again arrested by police for undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison for 17 months.      

6.  By a Notice of Decision dated 18 September 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk but including 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 assessed the level of risk of harm from those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no reason for them to specifically target the Applicant as just a lowly BNP supporter with no official post in the party, that 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 part of Bangladesh away from his home district in large cities such as Dhaka where it would be difficult if not impossible for those local AL supporters to locate him.

8.  On 9 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 19 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found from reliable COI that conflicts and fights between supporters of rival political parties were common at that time in Bangladesh, that given the low intensity of past threats or ill-treatment from those AL supporters that there is no evidence that the Applicant had been specifically targeted by them, and that in any event with the option of reasonable internal relocation within Bangladesh available for the Applicant to move safely to other area away from his home district without any risk of being located by those local AL supporters that his claim for non-refoulement protection failed on all applicable grounds.   

10.  On 10 May 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, and in his supporting affirmation of the same date he merely attached copies of the decisions of the Director and the Board and other previously submitted documents but without putting forward any proper or valid ground for his intended challenge.  Nor did he request any oral hearing for his application.  As such 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 for his intended challenge.

11.  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.

12.  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 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.

13.  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.

14.  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