Alam Mohammad v. Torture Claims Appeal Board

HCAL 1516/2018

[2020] HKCFI 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1516 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 32-year-old national of Bangladesh who entered Hong Kong illegally on 29 September 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 his creditor for failing to repay his loan.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Chandanbari, Monohardi, Narsingdi, Bangladesh.  After leaving school he borrowed a loan from a local money-lender to form a car rental business with two other partners in his home town Monohardi, with the loan repayable by instalments at 20% interest rate with income from his business.

3.However, his business later turned out not profitable, and in the absence of sufficient income the Applicant started to default with his loan repayment to his creditor who had repeatedly pressed him to repay his loan.

4.One day in December 2014 while the Applicant was on his way to the market, he was confronted by his creditor and his men with demand for repayment of his loan, and when the Applicant was unable to do so, his creditor and his men proceeded to beat him with wooden sticks that caused him bruises all over his body, and before he left his creditor warned the Applicant that if he still failed to repay his loan soon, he would be killed.

5.After the assault, the Applicant did not report the incident to the police because his creditor was an influential man in the village with political connections, and instead he fled to Dhaka to take shelter at his cousin’s home.

6.However, in March 2015 when he heard that his creditor had come to Dhaka looking for him, the Applicant fled to India and then to Nepal, but later when he heard that his mother had fallen ill, he therefore returned to Bangladesh to stay with her, during which he had no further encounter with his creditor, but as he still felt it was not safe to remain in Bangladesh, he therefore departed again on 14 September 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 (“NCF”) on 6 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 18 December 2017 the Director of Immigration (“theDirector”) 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 found no substantial grounds for believing that there will be any real and substantial risk of being harmed or killed by his creditor upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from him, that it was a private monetary dispute between them without 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 157 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 part of Bangladeshaway from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for his creditor to locate him.

9.On 28 December 2017 the Applicant 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 27 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted that the Applicant had obtained a loan from his creditor which he ultimately failed to repay and as a result he had been assaulted by his creditor on one occasion, but found no evidence of any real intention on the part of the creditor to seriously harm or kill him other than attempts to force him to repay his loan, that in any event it was a private matter between them involving non-payment of a debt which did not relate to any question as to race, religion, nationality, or membership of any particular group or political opinion or with any official involvement that state or police protection would be available to him, and that with reasonable internal relocation within Bangladesh for him to safely move to other parts away from his home district in large cities such as Dhaka where he had stayed before without incidents and without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

11.On 1 August 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) that the Board had unlawfully fettered its discretion 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 the result of procedural error or unfairness;

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

(5) that the hearing bundle was given to the Applicant only six days before his appeal hearing before the Board with the majority of the documents in English thereby given him insufficient time to prepare and to find an interpreter to assist him for his appeal which is procedurally unfair and unreasonable; and

(6) that the Board had significantly relied on source of news not officially recognized orwas hearsay or outdated which resulted in the Board making groundless speculations that it would be safe for him to return to his country of origin.

12.These are however all very 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 how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner,or in what way was its decision unreasonable or irrational in the public law sense, or what sources of news relied on by the Board were unofficially recognized or was hearsay or outdated.  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 challenge.

13.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.

14.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant 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 his oral hearing he never raised any issue or requested the adjudicator for further time to enable him 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.

15.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.

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 8^th 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