Hasan Md Mehedi v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 58/2018

[2020] HKCFI 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 58 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 28-year-old national of Bangladesh who entered Hong Kong illegally on 28 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 supporters of the student wing of rival political party Bangladesh Nationalist Party (“BNP”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kaitala, District Brahmanbaria, Bangladesh.  In 2010 he attended Dhaka College and joined the student wing Bangladesh Chhatra League (“BCL”) of the political party Awami League (“AL”).

3.As BNP also had its student wing Bangladesh Jatiyatabadi Chhatra Dal (“JCD”) in the college, there were frequent conflicts and clashes between the student supporters of the two student wings in which the Applicant would sometimes be involved, during which usually verbal assaults and threats but without physical violence would be made by the student supporters against each other until the school or police put an end to it.

4.One day in March 2012 after such a clash between the two student groups, one of the JCD student supporters was murdered, and a complaint was made to the police that the Applicant and some of his fellow BCL supporters were involved in the incident, and when the Applicant heard that the police were looking for him and that JCD supporters were also trying to take revenge against him, he fled to Comilla to take shelter at a friend’s place for several months before moving on to Sylhet and then Rajshahi until June 2013 when he went to Dhaka where he found a job and stayed with another friend.

5.One day in late 2013 while in the street he ran into a group of JCD supporters who verbally abused and threatened him but he managed to escape from the scene unhurt, but about a week later when he again ran into the same group of JCD supporters, he was beaten by them with wooden sticks before he was eventually able to make his escape and received medical treatment at the local hospital.

6.After the incident the Applicant continued to stay at his friend’s place in Dhaka, but when he heard that the JCD supporters were still looking for him, he departed Bangladesh in June 2014 for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 11 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 29 June 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 level of risk of harm from the JCD 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 conflicts with those supporters of rival political party were common in Bangladesh with no evidence that he had been specifically targeted by them for political reason or that he had been pursued by the police given the fact that he was able to move freely in Bangladesh and to leave the country without any difficulty, thatin the absence of any official involvement that state or police protection would be availableto 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 168 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 and educated young man to move to other part of Bangladesh away from his home district in large cities such as Comilla, Chittagong, Sylhet, or Rajshahi where he had resided in all before without incidents and where it would be difficult if not impossible for those JCD people to locate him.

9.By a Notice of Further Decision dated 4 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submitadditional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 12 July 2016, and for which he attended an oral hearing on 2 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found inconsistencies and discrepancies in the Applicant’s account of events occurred in Bangladesh before his departure that his claim was assessed as unreliable and incredible, and that in any event reasonable relocation alternatives are available in Bangladesh that it would not be unduly harsh for him as an able-bodied young man with work experience to move to other parts of Bangladesh away from his home districtto avoid those JCD supporters that he failed to establish his claim under all applicable grounds for non-refoulement protection.  

12.On 11 January 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, or in his supporting affirmation of the same date in which he merely exhibited copies of the Board’s decision and other documents from his hearing bundle for his appeal before the Board.  In the absence of any legal error or procedural unfairness in the Board’s decision being shown by the Applicant, I do not see any realistic prospect of success in his intended challenge.  

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where 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 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.Furthermore, the fact 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.

15.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.

16.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 16^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