Mizanur Rahman v. Immigration Department

HCAL 334/2018

[2020] HKCFI 1074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 334 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 39-year-old national of Bangladesh who last entered Hong Kong illegally on 16 June 2014 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 a local leader of political party Awami League (“AL”) and/or by supporters of rival Bangladesh Nationalist Party (“BNP”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Asad Nagar Village, Comilla District, Bangladesh.  After leaving school he assisted in his father’s shop, and as his father was a local leader of the AL committee in his home village, he also became a member of the party.

3.One day in February 2002 while his father was making a speech in a party rally in the village, a group of rival BNP supporters rushed in to attack his father with wooden sticks and other weapons that his right leg was permanently damaged that upon his discharge from the hospital, he resigned from his post in the party.

4.Shortly thereafter the Applicant held a local rally in the village vowing to continue with his father’s work to help AL to defeat BNP in the forthcoming general election.  Several days later while he was having tea with a friend in a tea shop, some BNP supporters came into the shop and demanded him to leave, and when the Applicant refused, they punched and kicked him and his friend violently before they left.  The Applicant did not report the matter to the police because BNP was then the ruling party and he was afraid that the police were under their influence.

5.On another occasion when the Applicant was on his way home from work, he ran into the same group of BNP supporters who then attacked him with hockey sticks that he lost consciousness and was subsequently taken by some passers-by to the hospital for treatments.

6.Upon his discharge from the hospital, the Applicant became fearful for his life and fled to Dhaka where he stayed for six years without incidents working as a salesman,but in 2008 when he was told by his family that the BNP people had come to his home village looking for him, he decided that it was no longer safe to remain in Bangladesh,and on 25 March 2008 he departed for China, and from there he sneaked into Hong Kong,and upon his arrest he raised a torture claim which he subsequently withdrew in 2013 after being told by his family that it would be safe to return home, and on 24 May 2013 he was repatriated to Bangladesh.

7.Upon returning to his home village, the Applicant rejoined AL which had then become the ruling party after winning the general election in 2008 and again in 2013, but after he announced his intention to run for the local AL committee manager against the incumbent manager Jahangir, the latter threatened him to withdraw his nomination for the election or else he would be killed, to which the Applicant refused.

8.One night Jahangir came with his men to the Applicant’s home, and when the Applicant refused to open the door, they pushed at the door so hard that it fell on the Applicant and knocked him out.  After regaining consciousness in the hospital, he was told by the doctor that he had suffered a head injury that caused some memory loss.

9.Upon his discharge from the hospital, the Applicant made a complaint to the local police, but when the police refused to take any action, the Applicant felt that his life would be in danger to remain in Bangladesh, and so he departed in March 2014 for China, and from there he again sneaked into Hong Kong, and upon his arrest by the police he raised a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 27April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.By a Notice of Decision dated 26 October 2016 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”).

11.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 Jahangir or the BNP people to the Applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that his problems with Jahangir was a private personal dispute without any official involvement that state or police protection would be available to the Applicant if resorted to, that there is no evidence that he had been specifically targeted by the BNP supporters and that as AL has since become the ruling party that there is no reason why he should still fear the BNP supporters, 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 143,000 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 Dhaka where he had lived for six years before without incidents and where it would be difficult if not impossible for his perceived enemies to locate him.

12.On 7 November 2016 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 29 January 2018 before the Board during which he declined to give any further evidence but did answer questions put to him by the adjudicator for the Board. On 14 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board found no evidence or sufficient evidence to show that the Applicant had suffered any severe physical or mental injuries within the requirements of any of the applicable risks, that his dispute with Jahangir was a private personal matter without any official involvement that state protection would be available to him, that there is no evidence that he is still being targeted by the BNP people upon his return to Bangladesh in 2013, and that with reasonable internal relocation available that it would not be unreasonable or unduly difficult for him to move safely to other parts of Bangladesh away from his home district in large cities such as Dhaka where he had lived before and where he can safely re-establish himself without any fear of any risk of harm from either Jahangir or those BNP supporters.

14.On 2 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he rejects the Board’s decision as unfair but without providing any particulars or elaborations as to how or why it is considered as it is unfair, and in the absence of which I do not find any reasonably arguable basis to challenge the finding of the Board.

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does notoperate as a rehearing of a non-refoulement claim when the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where 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 9^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