HARIS MOHAMMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 1465/2019

[2024] HKCFI 1725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1465 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 39-year-old national of Bangladesh who entered Hong Kong illegally in May 2014 and was arrested by police on 30 May 2014. After he was referred to the Immigration Department for investigation, 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 for refusing 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 Mohammad Ali Bazaar, District Feni, Bangladesh. After leaving school he ran his own cosmetic shop, got married and raised a family with his children in his home district, and supported BNP regularly attended their local meetings and activities.

3.  In 2001 some local AL supporters started to come to the Applicant’s shop harassing him and demanding donations of money for their party, and when the Applicant refused, they then beat him and threatened to kill him if he refused to pay, and so the Applicant yielded to their extortions and paid whatever he could afford to avoid troubles.

4.  One day in late 2007 the local AL supporters went to the police to make false charges against some BNP people including the Applicant who were then arrested and detained at the local police station for several months until early 2008 when he was released by the court without charge.

5.  As a result his shop business was doing badly with much less income, yet the AL supporters continued to extort money from him, and on one occasion in late 2013 when they demanded for a large donation, the Applicant pleaded for more time to collect the money, to which the AL people agreed, and after they left, the Applicant decided that it was no longer safe to remain in Bangladesh, and so one day in May 2014 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 7 April 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”).

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 evidence of any real intention of them to seriously harm or kill him other than to extort money from him, 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 156 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 areas of the country away from his home district in large cities such as Chittagong or Dhaka where it would be difficult if not impossible for anyone to locate him.

8.  On 27 April 2017 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 12 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  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 Bangladesh to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of them to seriously harm or kill him other than to extort money from him, 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 if resorted to 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.

10.  On 30 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That the Board was in breach of procedural fairness by unlawfully fettering its discretion in refusing the Applicant’s appeal on the ground 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 errors or unfairness;

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

(5)  That the Board failed to give the Applicant an opportunity to put forward his submissions at the oral hearing or to submit written submissions in reply to the Director’s submissions; and

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated which resulted in its groundless speculations that it would be safe for the Applicant to return to his home country.

11.  These are however all just some 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 unlawfully fetter its discretion or 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, or how was the Applicant prevented from making his submissions or reply in his appeal hearing before the Board when he was clearly able to make his representations and submissions to the Board during his appeal hearing without any problem. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant or at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.

12.  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.

13.  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 36 – 72 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even 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.

15.  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.

16.  For 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