Mizanur Rahman v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 382/2018

[2019] HKCFI 411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 382 of 2018

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 37-year-old national of Bangladesh who entered Hong Kong illegally on 11 July 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a torture 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”), and upon the commencement of the Unified Screening Mechanism, his torture claim was taken as a non-refoulement claim. He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Bhatinbhog Village, Munshiganj District, Bangladesh where his father, wife and son still live.  After leaving school he worked as a welder in Dubai until 2012 when he returned to his home village to run a grocery shop and got married.  He had also joined the political party Bangladesh Nationalist Party (“BNP”) regularly attended its meetings and rallies.

3.However, not long after opening his grocery shop that the applicant started to experience harassments and intimidations from some AL supporters who would come into his shop to take food products without payment and to extort money from him unless he agreed to quit his party and to join AL, and when he tried to stop them from entering his shop, they would respond with threats to kill him and to burn down his shop.

4.As the applicant found himself unable to survive the extortions and threats from those AL people, he therefore sold his business in March 2013 and decided to leave Bangladesh for his own safety, which he did on 28 June 2013 when he departed for China, and from there he later sneaked into Hong Kong, and after he was arrested by police he raised his torture claim, and completed a Supplementary Claim Form for non-refoulement protection on 20 September 2014 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

5.By a Notice of Decision dated 25 March 2015 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”).

6.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 those AL people to the applicant upon his return to Bangladesh as low due to the absence or low intensity and frequency of past ill-treatment from them, that their sole intention was to take things and extort money from his shop but after he had sold it there was no longer any reason for them to harm the applicant, that in the absence of 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 166 million people spread across a vast territory of more than 143,000 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 Dhaka where it would be difficult if not impossible for those AL people to locate him.

7.By a Notice of Further Decision dated 12 May 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”).

8.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 was filed on 31 March 2015, and for which he attended an oral hearing on 22 January 2018 before the Board during which he accepted that situation back home in Bangladesh had improved and that it was safe for him to return home to take care of his wife and child, but he was not yet ready to leave Hong Kong without providing any particulars or making any further submission.  On 2 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board as above noted that the applicant had stated at the hearing that it was safe for him to return to Bangladesh, and found in any event no substantial risk or any substantial basis of fear that those unidentified AL people would still have any adverse interest in him after all these years when he had sold his shop and that he was not any important member of BNP, especially if he were to relocate to other part of Bangladesh away from his home area where he can live without any undue hardship or fear that he may be found by those AL people, and concluded that his claim failed on all applicable grounds.

10.On 8 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no grounds for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely exhibited copies of the previous decisions and documents submitted by him to the Immigration Department.  

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as 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 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.

12.In the applicant’s case in the absence of any grounds or particulars of any error in the Board’s decision from him, and given what he had stated during his appeal hearing, the Board was in my judgment certainly entitled to arrive at its decision based on the evidence and information available before it, and I do not see any reason to reverse or interfere with the Board’s assessment of the applicant’s claim.

13.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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14.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.

15.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 4^th day of April 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