Case Document

100%Judiciary

HCAL 63/2018

[2019] HKCFI 1785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 63 of 2018

BETWEEN

	Sorder Md Mizan	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent

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 35-year-old national of Bangladesh who entered Hong Kong illegally on 16 August 2014 and was arrested by police on 17 August 2014. After he was referred to the Immigration Department for investigation, he raised 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”) and/or by the Bangladeshi authorities for being involved in the murder of an AL member. He was subsequently released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Kawadi, District Shariatpur, Dhaka, Bangladesh. After leaving school he worked in his father’s grocery store in the village, and joined the youth wing of the political party Bangladesh Nationalist Party (“BNP”).

3.However, in the village there was a dominating number of rival AL members and supporters, and as a result they would frequently come into conflicts and clashes with the applicant and his fellow BNP supporters.

4.One day in November 2011 an AL member was killed in one of those clashes, and the AL people made a complaint to the local police that the murder was caused by the BNP supporters including the applicant, and a warrant of arrest was therefore issued against him.

5.Upon hearing that he was wanted by the police, the applicant knew it was a false claim made against him but he nevertheless went into hiding as he was fearful that he would be ill-treated by the police and the authorities without any fair trial or justice.

6.Whilst in hiding from the police he continued to support BNP and worked for the party until late 2012 when he took a trip to Dhaka carrying 500,000 Bangladeshi taka for his family business, but on the way he was kidnapped by some masked men whom he suspected to be AL members taking revenge against him, and was held somewhere in Gazipur, Dhaka where all his money was stolen and that a ransom demand was made to his family, during which he was punched and kicked by those men and was denied any food.

7.About five days later he was released when he then fled to Shabujdagh and reported the matter to the police, but as he was unable to identify any of those masked men, the police were unable to make any arrest or to carry out any further investigation.

8.Upon returning home the applicant continued to support BNP and attended the party’s activities. One day in February 2013 when BNP supporters held a mass rally in Jajira in which the applicant also participated, they were attacked by AL supporters resulted in a mass brawl between the rival supporters until the police arrived and the applicant and his fellow BNP supporters therefore fled from the scene, but when he heard that the police were still looking for him for being involved in the fight, he therefore fled to various places including Dhaka, Chittagong and Sylhet, staying in each place for a few months between 2013 and 2014.

9.However, as the applicant was still in fear of being located by the AL supporters or the police, he decided to leave Bangladesh and so on 12 August 2014 he departed for China, and from there he sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 2 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.By a Notice of Decision dated 27 March 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”).

11.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 by his perceived enemies to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence indicating any real intention on the part of those AL people to harm or kill the applicant, that in the absence of official involvement that state or police protection would be available to the applicant if resorted to,that reliable and objective Country of Origin Information (“COI”) show that if the applicant was indeed to be arrested and charged for the death of the AL member that he would be afforded a proper and fair trial under an effective legal and court system in Bangladesh, as well as the availability of reasonable internal relocation alternatives 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 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 those AL people to locate him.

12.On 7 April 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 13 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 8 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board found no evidence that the applicant had been specifically targeted by the AL supporters, that his injuries received during the clash between supporters of AL and BNP did not attain the minimum level of severity that could be regarded as torture, that there was no reliable evidence that those men who kidnaped him were AL people or that they had any real intention to kill him as otherwise he would not have been released, that there was no evidence of any official involvement in any of the incidents against him, that there were concerns over the authenticity of those documents produced by him including the police report relating to the charge against him over the death of the AL supporter that would seriously undermine his claim that he was being pursued by the Bangladeshi police or government, that in any event reliable COI show that Bangladesh has in place the law and legal system that provide for the right to a fair public trial whether the charge against him for the death of the AL supporter was false or not, and that reasonable internal relocation alternatives are available for the applicant to safely return to other part of Bangladesh without any fear of being located by those AL supporters, and concluded that he had failed to substantiate his non-refoulement claim under any of the applicable grounds.

14.On 12 January 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, and in his supporting affirmation of the same date he merely regurgitated his claim that his life would still be in danger in his home country and that he would submit further documents in support of his claim.

15.He did not request for any oral hearing for his application, but on 18 March 2019 he submitted to Court the following documents without any explanation or elaboration:

(a) several blood or haematological reports of a patient with the same name of the applicant;

(b) English translation of First Information Report (“FIR”) against the applicant and two other persons for the death of the AL member made by the father;

(c) English translation of a Remand Application against the applicant and two other persons for the death of the AL member;

(d) English translation of a Warrant of Arrest issued against the applicant; and

(e) a reference letter issued by a president of BNP in the Shariatpur District of the applicant.

16.None of these documents appear to me to have been properly authenticated or notarized as they were all from Bangladesh, and in his covering letter the applicant did not give any explanation or elaboration of the purpose of any of the documents, in the absence of which nothing useful or of any relevancy can be made of some of them such as the blood or haematological reports. As for the others, documents (b) to (d) appear to have already been produced before the Director and had already been considered and dealt with in his Notice of Decision (see paragraphs 8.49 – 8.53).

17.Similarly these documents had also been considered by the Board in the applicant’s subsequent appeal, as evidenced in paragraph 179 of the Board’s decision, whilst their evidential effect and implication of his claimed fear of being arrested by the police for the false charge of murder of the AL member and of not being afforded of a fair trial in Bangladesh had also been properly considered and assessed by the Board in paragraphs 128 – 142 of the decision. As for document (e), even ignoring the question of its authenticity, it is clear to me that the applicant’s affiliation with BNP was never an issue or in dispute either before the Director or the Board. As such and in the circumstances, these documents had either already been properly considered and dealt with before by both the Director and the Board, or would have no evidential value in assisting or advancing the applicant’s case any further had they been presented before the Director or the Board.

18.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department, or 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

19.In the applicant’s case, as noted above he did not identify any error of law or procedural unfairness in either decision of the Director or the Board, and in the absence of which I do not find any legal basis to challenge their findings. The fact is that it has been established by both the Director and the Board in their decisions 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.

20.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.

21.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 3^nd day of October 2019.

(NG Ka-wing)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 3 October 2019 Sorder Md Mizan Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3 October 2019 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6780/17/4/56/B800 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)