Apple Razaul Karim v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 1043/2017

[2018] HKCFI 2267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1043 of 2017

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Bangladesh who entered Hong Kong illegally on 5 October 2012 and was arrested by police on the same day. After being 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 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 Trishal, District Mymensingh, Bangladesh. After leaving school he ran a shop and became a member of the Bangladesh Nationalist Party (“BNP”) and later became its president of Ward Number 2 under Trishal Municipality regularly attending its meetings and rallies as well as participating in its election campaign in his home district.

3.One day in November 2008 when he was working together with fellow BNP members in the party’s election campaign, they were confronted by a group of AL members and supporters who threatened them not to continue with their campaign or else there would be trouble. The AL people then left without any further incident.

4.Sometime after that incident the Applicant ran into the same group of AL supporters on the street when they asked him to meet with their leaders at their clubhouse to discuss about joining their party, and when the Applicant refused, they threatened him that he would have big trouble.

5.A few days after AL won the election, the Applicant found that his shop had been broken in and vandalized, and when he reported the matter to the police, he found them unhelpful and failed to follow up with any investigation.

6.One day in May 2009 while the Applicant was out working, the police came to his home looking for him over a murder investigation, and left after they were told by his parents that they did not know where the Applicant was. Afterwards when the Applicant was told by one of his friends who ran a photocopying shop that he saw his name on some court documents about a murder case being photocopied, and when his friend later went to the police station to make enquiry about it, he was told that it was some AL leaders who had filed a murder charge against the Applicant. Upon hearing this the Applicant fled to hide in a relative’s home.

7.Later when the Applicant was informed by his friend that an arrest warrant had been issued against him by the Mymensingh District Court, he hired a lawyer to successfully apply for bail on his behalf, but after several months his bail was revoked and he was remanded in prison for sixteen months during which he was interrogated by the police about the murder case of which the Applicant insisted that he was innocent.

8.Eventually the Applicant was able to make bail with the assistance of lawyer, but he was mocked by some AL supporters on the streets that it would not be the end of his trouble, and several months later when he heard that the police were again looking for him over two more false charges laid against him for robbery and extortion, he felt it was no longer safe to remain in Bangladesh and fled to Mymensingh Sadar where he made preparation to leave for China, which he did on 2 October 2012, and from there he sneaked into Hong Kong and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 1 December 2014 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service.     

9.By a Notice of Decision dated 30 September 2015 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 Claim”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap. 383 (“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”).

10.In his decision the Director took into account of all the circumstances of the Applicant’s claim found no substantial grounds to believe that the risk of harm from the AL people upon his return to Bangladesh due to the low intensity and frequency of past ill-treatments from them, that in the absence of any official involvement in the threats from the AL people that reasonable state or police protection would be available if resorted to, that the fact that he was able to leave Bangladesh without any difficulty show that he was not wanted by the government, 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 168 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area away from his home district where it would be difficult if not impossible for those AL people to locate him.     

11.By a Notice of Further Decision dated 13 February 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

12.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, for which he filed his appeal on 12 October 2015, and for which he attended oral hearing on 13 March 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 30 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board found the general credibility of the Applicant questionable for being unable to provide details of important or significant aspects of his claim, that the authenticity of his documents was questionable and unreliable, that taking his evidence as a whole that it was not persuaded that he had given a truthful account of events which led to his departure for Hong Kong or that he was anything more than a low-level supporter of BNP, that taken his case at the highest that his confrontation of threats and harassments from AL supporters were no different from those that were common between rival parties in Bangladesh and that he was not specifically targeted by the AL supporters, or that he was ever detained on false charges, and concluded that his non-refoulement claim fails on all applicable grounds.

14.On 8 December 2017 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)   Procedural unfairness in that the Board had unlawfully fettered its discretion in refusing his appeal on the grounds that it did not satisfy the requirement;

(2)   Procedural unfairness in that the Adjudicator had acted in a procedural unfair manner in dealing with his appeal;

(3)   Procedural unfairness in the Board’s decision to refuse his appeal which is unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness;

(4)   Procedural unfairness in that the Board had failed to meet the greater care and duty owed to a self-represented claimant;

(5)   that the Board significantly relied on the source of news not officially recognized or is simply hearsay or outdated.  

15.These are however all just broad and vague assertions of the Applicant with some key words and phrases 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 in what way that the Board had fettered its discretion, or how did the Adjudicator act in a procedural unfair manner, or why was the Board’s decision unreasonable or irrational in the public law sense, or how did the Board fail to meet the greater care owed to the Applicant, or what COI relied on by the Board that were not officially recognized or outdated or hearsay. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

16.The only other complaint which the Applicant appeared to have made with any elaboration in his affirmation was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

17.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had already been made available to him earlier when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to better prepare for his appeal at his oral hearing to the Adjudicator. Accordingly I do not find anything amiss arising from the hearing bundle being given to the Applicant for his appeal before the Board.

18.The fact is that the Applicant’s claim was rejected by the Adjudicator essentially on his credibility based on the evidence available to the Board with the benefit of hearing him in person and for the detailed analysis and reasons set out in paragraphs 76 – 113 of his decision, in which no legal error or procedural unfairness or irrationality has been clearly or properly identified by the Applicant.

19.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board who 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 being 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 Re Litoun Mounsy [2018] HKCA 537.     

20.In the premises and 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 26^th day of October 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