Hossain Abul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1417/2018

[2020] HKCFI 543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1417 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 16 October 2015 and was arrested by police on the same day.  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 the political party Awami League (“AL”) for failing to pay extortion money.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Bainkais, District Munshiganj, Dhaka,Bangladesh.  After leaving school he worked in various jobs in various places, and in 2009 started to run his own restaurant in his home district in Dhaka.

3.In about 2014 some local AL supporters came to the Applicant’s restaurant demanding for donations for their party which the Applicant considered as extortion money,but as he did not want any trouble from them so he would just pay them some money for them to go away, and never reported the matter to the police.  On occasions when he did not pay them enough money, they would threaten him with violence with a warning that if he wanted to be able to continue to run his restaurant business, he must pay them enough to satisfy their demand.

4.However, in late 2014 his restaurant business went down and was closed, and to avoid any further threats from those AL supporters, the Applicant therefore left his home district for other places in Bangladesh, but by September 2015 he felt it was no longer safeto remain in Bangladesh, he therefore departed on 3 October 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 22 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 8 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”).

6.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 him being harmed or killed by those AL supporters upon his return to Bangladesh due to the absence or low intensity and frequency of past ill-treatment from them, that their only intention was to extort money from the Applicant’s business, that there is no reason for them to have any further adverse interest in him after having closed down his business and having left the country all these years, that in any event in the absence of any 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 squarekilometers 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 Gazipur or Sylhet where it would be difficult if not impossible for those AL supporters to locate him.

7.On 22 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Board’s decision, and for which he attended an oral hearing on 30 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s account of being extorted by certain local AL supporters for money or donations but found no evidence that he had everbeen ill-treated let alone ill-treatment which had amounted to the minimum level of severity under any of the applicable risk, nor was he ever targeted for harm or persecution for any political reason or any reason other than for extortion to which police protection would be available for him that his claim for non-refoulement protection failed on all applicable grounds.

9.On 18July 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 had unlawfully fettered its decision by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant; and

(5)  that the Board didn’t scrutinize the matter of the Applicant’s claim.

10.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 or the adjudicator had erred in the decision,or in what way did the adjudicator act in a procedurally unfair manner in dealing with his appeal, or how its decision was unreasonable or irrational in the public law sense, or how did it fail to scrutinize his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such I do not find any of them reasonably arguable for his intended challenge, nor do I find any reasonably arguable basis for him to challenge the findings of the Director or the Board in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant.

11.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.

12.Furthermore, 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.

13.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.

14.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