Ashraful Alom v. The Adjudicator of the Non-refoulement Claims Petition Office Appointed To Determine the Applicant’s Petition and Another

HCAL 422/2018

[2019] HKCFI 450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 422 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 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 38-year-old national of Bangladesh who arrived in Hong Kong on 5 April 2005 with permission to remain as a visitor up to 19 April 2005 when he did not depart and instead overstayed and was arrested by police on 21 March 2007 for overstaying and taking employment without permission.  After he was referred to the Immigration Department for investigation, he lodged a torture claim subsequently taken as 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 Bangladesh Nationalist Party (“BNP”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Jalkuri, District Narayanganj, Bangladesh.  After leaving school he became a supporter of BNP and eventually became a member putting up posters for the party and participating in their meetings and rallies.

3.In 2004 he quitted BNP to join the newly formed party Bikalpa Dhara Bangladesh (“BDB”).  Thereafter he was frequently approached by BNP supporters in the village to rejoin BNP but he always refused.

4.One day in January 2005 when he again refused their demand, he was attacked by a group of BNP members with wooden sticks until other villagers intervened and the applicant was then taken to the hospital for treatments to his injuries from the assault.

5.Shortly after his discharge from the hospital and return home, the applicant was again attacked by some of the BNP supporters from the same village who also vandalized his home and furniture.  On the following day when he reported the attack to the police, he was told that an investigation would be conducted but eventually no arrests were made.

6.However, a few days later when he heard that the BNP people had made a false claim against him with the police, the applicant fled to Dhaka where he stayed with a friend for a month without any incidents, but as he was advised by his friend that he could seek protection in Hong Kong, he therefore departed Bangladesh on 21 March 2005 for China and later to Hong Kong where he overstayed and subsequently raised his torture claim, and upon the commencement of the unified screening mechanism, his claim was taken as a non-refoulement claim for which he completed a Non-refoulement Claim Form on 3 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

7.While being released on recognizance pending determination of his claim, the applicant was arrested by police in 2016 for taking up unauthorized employment and was subsequently convicted and sentenced to 22 months and 2 weeks’ imprisonment.

8.By a Notice of Decision dated 28 August 2017 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 or 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”).

9.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 BNP supporters in his home village to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them which had not attained the minimum level of severity, that after all these years it is unlikely 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 156 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult to move to other part of Bangladesh away from his home district in large cities such as Dhaka where he had previously stayed without incidents and where it would be difficult if not impossible for those BNP people to locate him.

10.On 12 September 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 19 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the treatments which the applicant had received before he left Bangladesh did not fall within any of the applicable grounds, that there was no evidence of any real intention on the part of those BNP supporters in his village to seriously harm or kill him upon his return to Bangladesh in particularly after all these years, and that being a healthy and educated adult the applicant should have no difficulty moving and adapting to life in large cities away from his home district such as Dhaka or Chittagong to avoid any risk of harm from those BNP supporters.

12.On 15 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration that right to life must be protected from extra-judicial killings which he may face if deported to Bangladesh; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

13.These are however all very 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 Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or why would extra-judicial killings be relevant to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to provide relevant evidence to support his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, nor did he even now in his application before me or at the oral hearing produce any additional evidence or present any further argument for his claim.  As such I do not find any basis or merits in any of his grounds or that they are reasonably arguable for his intended challenge.  

14.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 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.

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 21^st 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