Rahman Mojibur v. Fraser Syme, Esq., Torture Claims Appeal Board

HCAL 1281/2018

[2020] HKCFI 453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1281 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 47-year-old national of Bangladesh who entered Hong Kong illegally on 30 March 2015 and was arrested by police on 2 April 2015.  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 certain local supporters of rival political party Awami League (“AL”) and/or by his creditors for failing to repay his debts.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village West Borali, District Chandpur,Bangladesh.  After leaving school he first worked as a salesman, married his wife in 2003,and in 2004 he borrowed some money to run a shop in Dhaka selling grocery and tobacco products.

3.At about the same time he also became a supporter of the political party BangladeshNationalist Party (“BNP”) and regularly attended its rallies and election campaigns in Dhaka.

4.In the general election in 2008, during the campaigns between BNP and its main rival AL in Dhaka, a local AL leader together with some of his fellow supporters would frequently come to the Applicant’s shop to demand that he switched his support to AL, andwhen he refused, they would harass and threaten him and his staff with violence which would continue for the next several years that the Applicant would always try to avoid them and stay out of their way by spending his non-working time away from Dhaka.

5.However, during the next general election in 2014, the threats and harassments from those AL supporters intensified, and one day in November 2014 the same group of AL supporters came to the Applicant and threatened to kill him unless he switched his support to AL.

6.Upon discussing with his wife, the Applicant decided to leave the country for his own safety, and so he arranged for his wife and children to move to his in-laws house in ChandpurCity, closed down his shop in Dhaka but without repaying all his debts to his creditors, and on 2 March 2015 he departed for China, and from there he later sneaked into Hong Kong, during which he heard that his creditors were looking for him everywhere with threats of violence over his failure to repay his debts, and so he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 July 2017and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 28 July 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”).

8.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the risk of harm to the Applicant upon his return to as low due to the low intensity and frequency of past ill-treatment from supporters of AL or his creditors, 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 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 supporters or his creditors to locate him.

9.The Applicant then lodged 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 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies, vagueness and implausibilities in the Applicant’s evidence as well as his non-persuasive explanations given during his oral hearing that he was not a credible witness, and rejected his claims to be a supporter or member of BNP or of any threats from AL supporters or of being pursued by his creditors, and concluded that he does not face any real risk of harm upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

11.On 4 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  misdirection in the law in the adjudicator misdirecting himself in the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial ground to believe that there was a risk of torture in the future;  

(2)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to take into account or putting proper weighton relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  irrationality in the adjudicator’s failure to evaluate and to make finding of fact as to whether a consistent pattern of gross and mass violation of human rights exists in Bangladesh;

(5)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

12.These are however all very broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended application.

13.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.

14.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15.Even if it is true that the hearing bundle indeed came to him late as alleged, and theApplicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation,whilst his NCF was completed on his own instructions with legal assistance, and that at hisoral hearing he never raised any issue or requested the adjudicator for further time to enablehim to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

16.Furthermore, the Applicant’s claim was rejected by the adjudicator essentially on his adverse finding on the Applicant’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 23 – 43 of its decision and with the benefit of hearing his evidence and answers to questions raised of his claim during the oral hearing of his appeal before the Board, 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 reasonably arguable basis for him to challenge the finding of the Board.

17.The fact is that it has been established by the Director in his 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, a decision also confirmed by the Board,there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

18.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.

19.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 2^nd day of June 2020.

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