Fakhruddin Md v. Andrew Ma, Member of the Torture Claims Appeal Board

HCAL 1251/2018

[2019] HKCFI 2668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1251 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 53-year-old national of Bangladesh who entered Hong Kong illegally on 4 January 2016 and surrendered to the Immigration Department on 5 January 2016 when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by one of his brothers over some monetary dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dhaka, Bangladesh where his mother and most of his siblings still reside.

3.After leaving school in Bangladesh he went with his eldest brother to Japan to further his studies and where he also worked in the restaurant and was able to remit money every month to his mother in Dhaka for savings, and over time his mother let his second elder brother Shamsuddin to manage the Applicant’s money as Shamsuddin was a successful businessman with political connections who knew how to invest his money wisely.

4.In 1999 the Applicant returned home in Bangladesh but was told by his mother thatShamsuddin had taken all his money and put them under his own name, and so the Applicant reported the matter to the police who advised him to bring legal action against Shamsuddin,and after he had filed his complaint to the court in Dhaka, he started to receive threatening calls from Shamsuddin.

5.One night in 2002 while the Applicant was on his way home, he was attacked by several men with knives and chopper that he was slashed and cut all over the body and that some of his right hand fingers were chopped off that he lost consciousness and was subsequently taken to the hospital where he was remained hospitalized for months.

6.Upon his discharge from the hospital, the Applicant continued with his court action against Shamsuddin as he suspected that he was behind the attack on him in 2002,but eventually he lost his court case as he suspected that Shamsuddin was able to influence the court.

7.In 2007 the Applicant discovered that Shamsuddin had forged his signature in the sale of a piece of land inherited from his father in which the Applicant had an equal share,and so the Applicant again reported the matter to the police and launched another court action against Shamsuddin through his lawyers.

8.When Shamsuddin found out about the new court action, he resumed his threats and harassments against the Applicant as well as his lawyers that the Applicant had to keep changing them, and that Shamsuddin also used all sorts of means to delay the Applicant’s court action that the Applicant eventually felt so frustrated and fearful of Shamsuddin’s threats that he decided to depart Bangladesh again, which he did in December 2015 for China, and from there he sneaked into Hong Kong raised his non-refoulement claim for protection,for which he completed a Non-refoulement Claim Form on 6 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 9 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”).

10.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real or substantial risk of being harmed or killed by his brother Shamsuddin upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from his brother, that after all these years that it is doubtful that Shamsuddin would still have any adverse interest in the Applicant, that the problems between them were personal or family disputes without any evidence 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 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 Shamsuddin to locate him.

11.On 21 August 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 5 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board accepted the Applicant’s account of his disputes with Shamsuddin and the circumstances which led to his departure of his country, but found no evidence of any official involvement in the disputes or the subsequent threats and assault on the Applicant that state protection would be available as well as reasonable internal relocation for the Applicant to safely move to other parts of Bangladesh to establish himselfwith his work experience and where there is no chance for Shamsuddin or his men to locate him that his claim for non-refoulement protection failed on all applicable grounds.  

13.On 3 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the Board misinterpreted the law and facts in rejecting his claim resulting in total failure of justice;

(2) that the Board committed an error of law resulting in an error in its decision in rejecting his claim;

(3) that the Board erred in its decision in failing to consider his claim fairly and properlyresulting in failure of equity and justice;

(4) that the Board’s decision is bad in law as well as in facts resulting in failure of justice; and

(5) that the Board misread and misunderstand the Applicant’s claim and arbitrarily passed judgment on his claim resulting in failure of equity and justice.  

14.These are however all just 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 Board had erred in its decision, or what error of law did the Board commit in its decision, or in what way did the Board misinterpret the law or misread the Applicant’s claim or that its decision was bad in law, or how did the Board arbitrarily pass judgment on his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant with sufficient particularity, I do not find any of these grounds reasonably arguable, or any valid basis for him to challenge the finding of the Board.

15.As has been repeatedly emphasized by the Court of Appeal, 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.

16.The fact is 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.

17.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.

18.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 23^rd day of December 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