Mia Mohammad Milon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 593/2017

[2019] HKCFI 774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 593 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 the Applicant being present / absent 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 38-year-old national of Bangladesh who entered Hong Kong illegally on 1 August 2015 and was arrested by police on 4 August 2015.  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 Goraduba Village, Kendua in Netrokona District, Bangladesh.  After leaving school he worked as a farmer and then a clothing merchant and got married with a daughter. In 2000 he joined the Islamic political party Jamaat-e-Islami (“JeL”) and regularly attended their meetings.

3.In 2008 after AL became the ruling party in Bangladesh, its supporters started to harass and threaten the supporters of other opposing parties including JeL.  One day in March 2015 when the applicant was attending a party meeting with his fellow supporters, a group of AL supporters appeared to demand that they put an end to their meeting and that they should quit JeL and join AL, and when they refused, the AL supporters pounced on them and attacked them with wooden sticks and tree trunks until intervened by passers-by, and before they left they threatened to kill them for refusing to join AL.

4.Thereafter nothing eventful occurred until the next JeL meeting in April 2015 when the applicant and fellow supporters were again attacked by the same group of AL supporters with wooden sticks and tree trunks and with death threats before they left.

5.After the second attack the applicant moved into hiding in various places in Dhaka, Harinnagar and Bhairab while his wife moved with her daughter to her father’s place in Atpara Kwndua, and in July 2015 the applicant departed Bangladesh for China, and from there he sneaked into Hong Kong and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 26 September 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.By a Notice of Decision dated 1 November 2016 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”).

7.In his decision the Director took into consideration of 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 low intensity and frequency of past ill-treatment from them, that there is no evidence to suggest that the applicant had been specifically targeted by the AL people, that in the absence of 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 130,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district such as Dhaka where he had stayed before without any incident.

8.On 14 November 2016 the applicant filed his Notice of Appeal/Petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 8 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 August 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found serious inconsistencies in the applicant’s evidence and that he was evasive and prone to exaggeration, that there were serious doubts as to whether he was a member of JeL, that he has presented no credible evidence why the AL people should have any adverse interest in him, that it was not accepted that there are any substantial grounds for believing the applicant would face a real risk of being subjected to harm if refouled to Bangladesh, and that even if there indeed such risk that it was confined to the local area where he had lived and that internal relocation to another part of Bangladesh would mitigate or remove such risk.  

10.On 7 September 2017 the applicant filed his Form 86 for leave to apply for judicial review but without naming whose decision that he intended to challenge and no ground for seeking relief was given in the Form either, while in his supporting affirmation of the same date he simply deposed that he wished to apply for judicial review of the decisions of both the Board and the Director but again without putting forward any ground in support of his intended application either.

11.In the absence of any legal error being identified by the applicant, I am unable to find any reason to usurp the role of the Director or the Board as the primary decision makers in their evaluation of the applicant’s asserted risk of harm based on the evidence available to them: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

12.Furthermore, as it has been established that the risk of harm from that group of AL supporters if real is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Bangladesh, there is simply no justification for affording 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.

Dated the 22^nd day of March 2019.

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