Sohel Mohammad v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 439/2018

[2019] HKCFI 426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 439 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 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 40-year-old national of Bangladesh who entered Hong Kong illegally on 11 June 2013 and was arrested by police on 19 June 2013.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain supporters of rival political party Awami League (“AL”), and after that claim had been rejected by the Immigration Department and his subsequent appeal also dismissed by the Torture Claims Appeal Board (“the Board”), he then lodged a non-refoulement claim for protection on the same basis.  He has since been released on recognizance pending the determination of his non-refoulement claim.

2.The applicant was born and raised in District Munshigani, Dhaka, Bangladesh.  After leaving school he ran his own mobile phone shop in Dhaka and joined the political party Jamaat-e-Islami (“JeI”) regularly participated in their meetings and rallies and assisted in putting up posters and distributing pamphlets in the local area.

3.After AL won the general election and became the ruling party, JeI planned a mass demonstration in January 2012 in which the applicant and his fellow members and supporters attended, but they were interrupted by the police who tried to disperse the demonstrators, and as a result the applicant and many fellow supporters were arrested and detained by the police but were released after bribes had been paid.

4.Soon after his release the applicant heard that the AL supporters were trying to influence the police to charge those JeI members who had participated in the demonstration, and as a result the applicant was arrested by the police again and was detained in the local police station during which he was beaten and warned not to take part in any future rallies for JeI, and after a heavy bribe was paid by his father that the applicant was released on the following day.

5.After the incident the applicant and his family moved to another district of Dhaka, but one day in February 2012 some AL members came looking for the applicant who happened not to be in the house, and when his father refused to disclose where he was, those men proceeded to beat him up, and afterwards when his father reported the matter to the police, he was advised to simply just co-operate with the AL people and be done with it.

6.As his father was concerned for the applicant’s safety, he advised him to leave Bangladesh for his own sake, and so the applicant departed on 12 March 2012 for China, and from there he later sneaked in Hong Kong on 11 June 2013, and upon his arrest by the police he raised his torture claim, and after it was rejected by the Immigration Department and his subsequent appeal was also dismissed by the Board, he then lodged a non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 29 March 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

7.By a Notice of Decision dated 11 July 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on the then applicable grounds namely 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”).

8.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 low intensity and frequency of past ill-treatment from them, that he was never specifically targeted by the AL people and in any event that after all these years it was doubtful that they would still have any adverse interest in him, 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 140,000 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 or Khulna where it would be difficult if not impossible for those AL people to locate him.

9.By a Notice of Further Decision dated 30 June 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”).

10.By then the applicant was already in the process of appealing to the Board against the earlier decision of the Director, the notice of which was filed on 25 July 2016, and for which he attended an oral hearing on 8 August 2017 before the Board during which he declined to give evidence but submitted a video in his mobile phone showing police in Bangladesh using violence against protesters but admitted that he was not in the video or that it had anything to do with him or his family.  On 5 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found the fact that the applicant was able to leave Bangladesh without any problems and came to Hong Kong without raising his claim immediately had cast doubt on his credibility of his assertion for genuine imminent and personal safety problem, that the totality of his alleged threats and harms from those AL people did not attain the minimum level of severity or which would put him into the category of any of the applicable grounds, and that in any event reasonable internal relocation alternatives within Bangladesh are available that he would not have any difficulty re-establishing his life in other cities such as Chittagong or Khulna where the chance of being located by those AL people would be slim upon his return to Bangladesh if indeed they would still have any adverse interest in him after all these years.

12.On 19 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground 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 from his appeal bundle before the Board with a short statement that he would like to review the Board’s decision which he found to be unfair without any further particulars or elaboration why it was so.  

13.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 their 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.In the present case the applicant declined to testify before the Board and hence there was no objective evidence to support his material assertions.  Based on her evaluation of the evidence and information available to the Board the adjudicator was entitled to make her careful and detailed findings in paragraphs 54 – 90 of the decision as to the applicant’s asserted risk of harm and rejected his claim.  In the absence of any error being identified by the applicant in the decision, I am unable to see any reason for reversing or interfering with those findings as to his asserted risk of harm in the Board’s decision.

15.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.     

16.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.

17.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 17^th day of June 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