Fakir Mohammad Eddris v. The Director of Immigration and Another

HCAL 674/2018

[2020] HKCFI 1126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 674 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 42-year-old national of Bangladesh who entered Hong Kong illegally on 8 November 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raiseda non-refoulement claimon the basis that if he returned to Bangladesh he would be harmed or killed by supporters ofrival political party Awami League (“AL”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Faridpur, Dhaka, Bangladesh where he ran a business selling building materials.  Given his family had a long history of supporting the political party Bangladesh Nationalist Party (“BNP”), he also became a supporter in 1998 regularly attended its meetings and rallies in his home village, and would from time to time experience conflicts and clashes with the members of AL which had a strong support in the village.

3.After AL won the general election in 2009, their local supporters in the village started to harass BNP supporters including the Applicant with extortions for money and threats to quit BNP to join AL, and when the Applicant refused to do either, he was attacked by three of them one day in 2011 when they poured hot tea on him and slashed his hands and legs with a knife for which he was subsequently taken to a hospital for treatments.

4.After discharging from the hospital the Applicant reported the attack to the police, but when no police action appeared to have resulted, and when the threats and harassments from the AL supporters continued, he then fled to Chuadanga District to take shelter at his aunt’s home, but when he still felt it was not safe there, he decided to leave Bangladesh anddeparted on 11October 2013 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 31 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 26 September 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 risk of him being harmed or killed by those AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence that he had been specifically targeted by the AL people or that given his insignificant position in BNP why the AL people should continue to have any adverse interest in him after all these years, 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 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 130,000 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 Sylhet or Rajshahi where it would be difficult if not impossible for those AL supporters to locate him.

7.On 10 October 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 14 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted that the Applicant may have been the victim of an assault by some AL supporters, but it was an isolated incident with no evidence of further attacks or that he had been specifically targeted by the AL people, and that in the absence of any official involvement that state/police protection would be available to him as well as reasonable internal relocation alternatives for him to safely move to other parts of Bangladesh that his non-refoulement claim failed on all applicable grounds.

9.On 19 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and amongst his regurgitation of his claim in his Form, I can identify what appear to me his grounds or complaints for his intended challenge as follows:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing his claim;

(2)  that their decisions were not fair or Wednesbury reasonable; and

(3)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence in support of his claim as well as his appeal.  

10.These are however just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as tohow they applied to his case or how the Director or the adjudicator had erred in the decision,or in what way were their decisions unfair or Wednesbury unreasonable, or how did the adjudicator fail to give him sufficient time or opportunity to provide relevant evidence in support of his case or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor did he ever raise any issue or request the adjudicator for further time or opportunity to produce further evidence at the oral hearing of his appeal before the Board.  In fact, even in his application now before me he did not put forward any further evidence in support of his claim which he claimed to have been denied the time or opportunity by the Board to do so.  As such I do not find any basis or merits in any of his grounds or complaints, or that they are reasonably arguable for his intended challenge.

11.As has been repeatedly emphasized by the Court of Appeal, 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.As noted above none of the complaints of the Applicant has any basis or merits, andin the absence of any error of law or procedural unfairness in either decision of the Director or the Board being shown by the Applicant, I do not find any reasonably arguable basis to challenge their findings.

13.Furthermore, the fact that it has been established by both the Director and the Board in their 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.

14.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.

15.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 11^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