Alom Jahangir v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 547/2018

[2019] HKCFI 261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 547 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 40-year-old national of Bangladesh who entered Hong Kong illegally on 12 February 2014 and surrendered to the Immigration Department on 25 February 2014 and subsequently lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by members of the Sarbohara Party (“SP”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Mahamudpur, Shariatpur District, Dhaka, Bangladesh where his parents and some of his siblings still live.  After leaving school he worked as a farmer in his family’s farmland.

3.In 2000 he became a supporter of the ruling political party Bangladesh Nationalist Party (“BNP”) in which his elder brother MR was the secretary of the Shariatpur District and had become a target of threats of the members of SP, an underground group in armed struggle against the government, and after MR had left the country, the applicant as his brother also became a target of the SP people.

4.One evening in 2010 when the applicant was having discussions with some fellow supporters of BNP, he saw a group of SP people approaching them with menace and therefore fled from the scene to hide in the forest.  On the following day when he returned home he was told by his parents that the SP people had come to their home the night before to extort money from them.

5.For the next several years the applicant continued to receive verbal threats from the SP people, and after several senior members of BNP had been murdered by them, the applicant felt it was no longer safe to remain in Bangladesh, he therefore fled to Dhaka to take shelter at one of his sisters’ place, and later departed Bangladesh on 22 December 2013 for China, and from there he sneaked into Hong Kong on 12 February 2014 and subsequently lodged his non-refoulement claim for protection, for which he later completeda Non-refoulement Claim Form on 27 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 2 September 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the SP people upon his return to Bangladesh as low due to the absent of past ill-treatment from them, that there was no evidence that the SP people intended to harm or kill him when nothing had happened to him all these years prior to his departure from Bangladesh in December 2013, that SP was outlawed by the Bangladesh government 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 158 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 part of Bangladesh away from his home district in large cities such as Chittagong where it would be difficult if not impossible for the SP people to locate him.

8.By a Notice of Further Decision dated 14 August 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”).

9.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, the notice of which he filed on 14 September 2016, and for which he attended an oral hearing on 15 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 22 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found that the applicant was just a supporter of BNP instead of being a member of any importance, and given that his brother MR had already left the country for more than 10 years and that the applicant knew hardly anything about the politics of either BNP or SP, it is unlikely that he would still be targeted by the SP people so many years later and that his fear of harm was rejected as groundless and fanciful, that in any event state protection would be available to the applicant, and that reliable COI shows that SP’s main activities were only confined to a few districts in Bangladesh that the applicant would be able to relocate to other areas away from his home district in large cities such as Dhaka or Chittagong where he would be free of any serious risk of harm from the SP people.

11.On 3 April 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 had unlawfully fettered its discretion in refusing his appeal on the ground that they did not satisfy the requirement;

(2) that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3) that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness; and

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

12.These are however all just broad and vague assertions of the applicant containing several 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 did the adjudicator act in a procedurally unfair manner or that his decision was unreasonable or irrational or procedurally unfair in the public law sense, or how did the Board fail to meet its care or duty to the applicant as a self-represented claimant. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, nor did he do so at the hearing of his application now before me despite being invited by the Court to elaborate on his grounds.

13.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 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 the 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 Re Litoun Mounsy [2018] HKCA 537.

14.Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim 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, and I accordingly refuse his leave application.

Dated the 29^th 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