HALDER USUB v. TORTURE CLAIMS APPEAL BOARD

HCAL 2062/2018

[2021] HKCFI 3449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2062 of 2018

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 refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally on 25 December 2012 and was arrested by police on 26 December 2012. 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”) because he and his father supported their rival Bangladesh Nationalist Party (“BNP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Munshiganj, Bangladesh. After leaving school he worked in his father’s shop in the home district, and followed his father’s step in supporting BNP, and as a result they together with other BNP supporters often came into conflicts with rival AL supporters who would make threats against them with violence to attempt to force them to quit their party.

3.  In late 2008 after hearing that one of his fellow BNP members had been murdered by those AL supporters, his father became fearful for his life and therefore fled from his home district to take shelter in a relative’s place in Natore.

4.  Thereafter those AL supporters turned their threats against the Applicant who later in 2009 also fled to join his father in Natore for the next three years without incidents, but as the Applicant was still concerned that eventually the AL people would locate him, he therefore departed Bangladesh on 21 December 2012 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.  By a Notice of Decision dated 11 August 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”).

6.  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 or reason for those AL people to specifically target him due to his lack of official position in the BNP 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 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 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 him to be located.

7.  On 22 August 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 11 June 2018 before the Board during which he declined to give any further evidence and was reluctant or unable to answer questions raised of his claim by the Adjudicator for the Board. On 14 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s evidence vague and lack of details or knowledge about BNP or his alleged involvement in the party that casted doubts over the credibility of his claim which was further undermined by his reluctance and inability to answer various questions raised of his claim during his appeal hearing that it was not satisfied that he had established any ground for believing that he would face a real risk of harm or ill-treatment as claimed upon his return to Bangladesh that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 27 September 2018 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 the following grounds for his intended challenge:

 (1) that the Board erred by failing to maintain high standard of fairness by not holding an oral hearing to allow the Applicant an opportunity to put forward his case;

 (2) that the Board failed to apply the minimum standard of procedural fairness required in its decision-making process; and

 (3) that the Board failed to take into consideration when making its decision that the Applicant was not legally represented and therefore had insufficient legal knowledge which could jeopardize his representation in the appeal process, and that it also failed to inform the Applicant that he could complain.

10.  These are however just broad and vague assertions of the Applicant containing several pages of key words and phrases as well as general legal principles but 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 the Board had failed to apply high standards of fairness in assessing his non-refoulement claim or appeal, while his assertion that the Board did not hold any oral hearing for his appeal is simply factually wrong when it is plain from the record and the Board’s decision that it did hold an oral hearing on 11 June 2018 for his appeal during which the Applicant was invited to give oral evidence and to answer various questions regarding his claim with the assistance of an interpreter but that it was the Applicant who declined to give further oral evidence or to answer questions from the Adjudicator for the Board.

11.  As such there is simply no basis or merits in any of these complaints of the Applicant, and in the absence of any error of law or irrationality 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.

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 21 – 38 of its decision in the absence of any reliable or credible evidence form the Applicant during his appeal hearing, 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 been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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. 

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, 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