Hossain Faruk v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 79/2018

[2018] HKCFI 2108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 79 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 35-year-old national of Bangladesh who entered Hong Kong illegally on 11 September 2013 and was arrested by police on 14 September 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Village Hakimpur, District Jhenaidaha, Bangladesh where he joined the Islami Chhatra Shibir (“ICS”), a student wing of the political party Jamaat-e-Islami (“JeI”) recruiting people to join the party, and eventually became the secretary of ICS.

3.However, during his recruiting activities he would frequently receive threats from supporters of rival AL, and one day in 2008 when travelling at night he was ambushed and attacked by a group of AL supporters with hockey sticks and wooden rods that he received a head injury and lost consciousness that he had to be taken to a clinic by some villagers for treatment.

4.After the incident and as the AL supporters continued to harass and threaten him, the applicant decided to leave home to take shelter at his cousin’s place in Dhaka where he stayed for six months without any incidents, but when he became homesick, he therefore returned to his home in Jhenaidaha.

5.However, about one week after his return, when he ran into some AL supporters on the street, they threatened that now that he was back they were going to kill him.  One week later around midnight a group of AL people came to his home and took him away to a place whether they threatened to kill him unless he signed on a document that he would leave the place and never to have any involvement in JeI.  Fearful for his life the applicant did sign the document, but was only released after he was given a further beating.

6.Upon his release the applicant fled to Dhaka again where he worked in a factory, but after staying there for two years without incidents, he heard from his father that the AL people were looking for him in Jhenaidaha and was advised to go stay in his cousin’s place in Sylhet, but after three months he heard that his whereabouts had been leaked to the AL people, he was told by his father to move to his grandfather’s place in Chuadanga.

7.After staying there for another four months, the applicant decided to leave Bangladesh, and so he returned to Dhaka in April 2013 and from there he departed for China and then sneaked into Hong Kong where he subsequently lodged his non-refoulement claim, and for which he completed his Non-refoulement Claim Form (“NCF”) on 8 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 3 February 2017 the Director of Immigration (“the 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 and non-derogable rights under the Hong Kong Bill of Rights (“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”).

9.In his decision the Director took into account 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 the AL people upon his return to Bangladesh due to the absence or low intensity and frequency of past ill-treatment from them during his stay in Dhaka for more than two years before coming to Hong Kong, that in the absence of any reliable evidence of any official involvement that state 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 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult to move to other area away from his home district such as Dhaka where he had stayed for more than two years without incidents and where it would be difficult if not impossible for those AL people to locate him. 

10.On 14 February 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 24 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board upon hearing the applicant in evidence found difficulties and inconsistencies in his evidence about the history of his involvement in ICS and JeI and rejected his claim to be a supporter or member of either ICS or JeI or that he had been assaulted or targeted to be attacked by the AL people, and concluded that he has fabricated those claims so as to create a basis upon which to apply for non-refoulement.

12.On 16 January 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) lack of legal representation in his appeal before the Board;

(2) lack of legal assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly and for not providing any proper or genuine explanation for rejecting his claim under BOR 2 risk;

(3) wrongful exercise of case management power on the part of the Board for wrongful reliance on COI in assessing malpractice of police and law enforcement in Bangladesh; and

(4) lack of fair hearing for failing to give reasons for not requiring the attendance of the Director in his appeal hearing.   

13.For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard 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: 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.

14.The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15.As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without basis.

16.It is also plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 37 – 38 of his decision when he explained his reasons for rejecting the applicant’s claim under BOR 2 risk.  As such there is simply no basis for the applicant to make such complaint.

17.As for ground (3) over the Board’s reliance of COI in its assessment of effectivenessof police and law enforcement in Bangladesh, again the applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 27 – 28 of the decision of the Director as well as those considered by the Board, I do not find any basis in this complaint of the applicant.

18.As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.

19.The fact is that his claim was rejected by the Board essentially on his credibility based on the evidence available including his testimony before the adjudicator, and as it has been repeatedly emphasized by the Court of Appeal that judicial review does not operate as a rehearing of a non-refoulement claim, when the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

20.Having proceeded to consider 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.

21.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.

Dated the 21^st day of September 2018.

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