Case Document

100%Judiciary

HCAL 889/2018

[2019] HKCFI 2420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 889 of 2018

BETWEEN

	Joynal Abedin	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 39-year-old national of Bangladesh who entered Hong Kong illegally on 1 October 2013 and was arrested by police on 16 October 2013. 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 a group of local supporters of rival political party Awami League (“AL”) in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kashipur, Monirampur, District Jessore, Bangladesh. After leaving school he worked in his father’s shop selling shoes in the Monirampur Bazaar, and became a supporter of the political party Jamaat-e-Islami (“JEI”) regularly attended its meetings and rallies.

3.In 2006 when AL won the general election and became the ruling party, the Applicant started to experience threats from several local AL supporters from his home village who would often come to his shop demanding him to stop participating in any of JEI activities or else they would lock up his shop and ran him out of business.

4.In 2010 these AL supporters started to demand money from the Applicant or else he would not be allowed to run his business in Monirampur Bazaar, and at first the Applicant would pay them some money to avoid trouble, but later when he heard that that these AL supporters were planning to attack him for continuing to participate in JEI’s rallies and protests, he fled from his hometown to stay in Dhaka without incidents, but as he still felt unsafe in Bangladesh, he therefore departed on 31 May 2013 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non- refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 25 February 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”).

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 supporters 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 of any physical harm being inflicted on him that his claimed ill-treatment did not attain the minimum level of severity under any of the applicable risks, that those AL supporters were in fact trying to extort money from him and in the absence of any official involvement that state 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 area 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 AL supporters to locate him.

7.By a Notice of Further Decision dated 4 May 2017 the Director again rejected the Applicant’s claim upon receiving no 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 7 March 2016, and for which he attended an oral hearing on 27 April 2017 before the Board during which he declined to answer any question which touched on material information beyond those already written in his NCF but did answer other questions put to him by the adjudicator for the Board. On 19 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found illogical incongruence in the Applicant’s account of events alleged to have occurred to him in Bangladesh that it did not accept that there is any probable truth that he was a JEI supporter, or that he was being threatened or ill-treated by the AL supporters save for possible extortion of money by some Monirampur Bazaar hooligans, and concluded that he can safely move to other parts of Bangladesh such as Dhaka where he had stayed before without incidents and where he can re-establish his business without any fear of risk of harm from those AL supporters that his non-refoulement claim failed on all applicable grounds.

10.On 21 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward essentially two grounds for his intended challenge summarized as follows:

(1) that the Board erred in failing to maintain high standards of fairness by not providing the hearing bundle with skeleton argument of the Director to him within a reasonable period of time and/or with interpretation thereby not giving him sufficient time to prepare for his appeal especially due to his limited skills in English and being unrepresented in his appeal before the Board; and

(2) that it was procedurally unfair that the documents in the hearing bundle which were in English were not translated for him that he was unable to properly prepare for the oral hearing of his appeal.

11.For his complaint in Ground (1) of not being provided with the hearing bundle for his appeal until just four days before the hearing and without translation of the documents in English thereby given insufficient time to prepare for his appeal, the Applicant did not provide any documentary evidence such as the covering letter from the Director that came with the bundle that it was given to him only four days before the hearing, but even if it were indeed the case, I note that most of the documents such as his NCF, record of his screening interview and the Director’s decision had all already been made available to his lawyer from DLS and would have been well familiar to the Applicant, and with which he never raised any issue at the oral hearing of his appeal before the Board, nor did he ask for further time to better prepare for his appeal. Instead he was able to proceed with his appeal and to answer questions from the adjudicator with the assistance of an interpreter without any difficulties. As such I do not find any basis or merits in this complaint of the Applicant.

12.For the same reasons I do not find his complaint under Ground (2) reasonably arguable as he was already familiar with most of the documents when he was still represented by DLS and that his NCF was prepared on his own instructions, and that he never raised any issue over translation at the hearing before the Board.

13.Furthermore, as his claim was rejected by the Board essentially on its adverse finding on his credibility as to his claimed fear of harm for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 34 of its decision, in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably basis to challenge the finding of the Board.

14.As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

15.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.

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 22^nd day of November 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 22^nd November 2019 Joynal Abedin 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 22^nd November 2019 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 3242/16/3/47/B432 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9001426/17 (Formerly RBCZ 696/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)