Shamim Hossain v. Director of Immigration

HCAL 242/2018

[2020] HKCFI 1271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 242 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 45-year-old national of Bangladesh who first came to Hong Kong in 2006 and subsequently made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was rejected in March 2011 and was repatriated to Bangladesh in May 2011, but in August 2014 he re-entered Hong Kong illegally and was arrested by police on 6 February 2015.  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 local rival political party Awami League (“AL”) and/or by the police over a false charge against him for the death of a local villager.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Outshahi, District Munshiganj,Bangladesh. After leaving school, he worked as a mechanic, got married with two children,and became a supporter of the political party Bangladesh Nationalist Party (“BNP”), but as AL was the ruling party, he and his fellow BNP supporters were often harassed by the AL people in his home village.

3.One day in January 2012 while the Applicant was attending a cricket match in the village with several of his friends, an argument broke out between some of the spectators which deteriorated into a fist fight during which one of the local villagers Monir was seriouslyinjured and later died in the hospital.

4.Several months later in May 2012 the Applicant heard that the police were looking for him and his friends as charges had been made against them for the death of Monir in that cricket match incident, of which he suspected that it was the local AL leader Ali Ahmed and his people who were behind the false charges in a plot against BNP, and as he believed that the local police were under AL’s influence, he therefore fled to Gazipur Singardighi District where he encountered no further incidents, but in August 2012 when he heard that the AL people and the police were looking for him everywhere and that his friends had allleft the country, he decided to follow suit by departing on 26 September 2013 for China, andfrom 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 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 11 July 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 real riskof being harmed or killed by the AL people or the police upon his return to Bangladesh due to absence of any past ill-treatment from them, that there was no reliable evidence that he was being pursued by the police as he was able to leave the country without any problem,that 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 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 it would be difficult if not impossible for those AL people to locate him.

7.On 24 July 2017 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 25 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s claims in respect of his political activities and profile in BNP not credible and did not accept that he was ever a member of BNP or that he was involved in or was accused of the murder of Monir, that the credibility of his claim was further undermined by his failure to seek protection upon his arrival in Hong Kong despite previous knowledge of his right to seek protection until his arrest somesix months later, and concluded that he was not a witness of truth and that there was not anyreal risk that he will face under any of the applicable grounds upon his return to Bangladesh.  

9.On 14 February 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 simply stated that the decision was unreasonable in that it failed to consider all the matters raised in his claim and/or give adequate reason for its decision without providing any particulars or elaboration.

10.However, on 8 June 2018 the Applicant filed a further affirmation in support of his application, and amongst the attached documents he put forward further grounds for his intended challenge in a statement under the title “Grounds for Petition/Appeal in the High Court of the HK Special Administrative Region”, in which he first repeated his claim as before and cited various authorities and principles of the relevant law, and then in paragraph 7 he provided additional grounds or complaints of the Board’s decision as follows:

“ 7. The application for leave to apply for judicial review is made on the grounds that the adjudicator failed to meet the high standard of procedural fairness required of the tribunal in that: (1) if the adjudicator sought to challenge the appellant’s credibility, a fair oral hearing was warranted with representation in order to satisfy the tribunal’s obligation of procedural fairness; and (2) the adjudicator took account of irrelevant considerations in assessing the appellant’s claim, rendering a refusal decision.”

11.The Applicant then went on to give the following elaborations of his complaints which were at times confusing and contradictory:

“ 8. The adjudicator after reviewing the case gave no proper reasons for the decision but it would appear that given the history of the matter and the material she had before her, she was satisfied that she had all the informationshe needed to conduct a review of the petition without a fair oral hearing and being unrepresented. The adjudicator handed down her written decision on 29 January 2018, in which she provides a very comprehensive and consideredanalysis of the information and issues. She correctly sets out the relevant rulesand principles that she has to apply in determining the appellant’s claim. She reasons her decision by first setting out the two matters that the appellant advanced in support of his claim. Under each matter she describes the appellant’s account of his experiences and concerns. Although this was highlighted in his decision, it did not feature in his analysis in concluding that the appellant’s experiences did not amount to torture and that there were no substantial grounds that he would be subjected to torture if he was returned back to his home country.

9.     The adjudicator has not taken all the COI material from the hearing bundle.  Having rejected the basis of the appellant’s claim, the adjudicator commented that there was no genuine threat (which she rejected) and internal relocation was not a viable option for the appellant.  There are several discrepancies in her decision.  The appellant has not fabricated any claims in relation to his association with BNP and the murder of Monir which he was falsely accused of.  Appellant is a member of BNP since a very long time and during that time it was not required to complete any form or document to become a member, it was only through Word of Mouth.  The adjudicator in her own decision states that since 2008, a prospective member is required to meet a leader of the BNP local chapter and fill the membership form to become a member.  The Bangladeshi National ID card is not completed as yet, it shows the system is so slow, the appellant does not have a Bangladeshi national ID card as yet.  The appellant is a member of BNP since 1990 and being away 4/5 years does not have any deterrent, as the appellant was recruiting new members for BNP, hence he was targeted by Ali Ahmed and framed for Murder.  Monir was hit on the head with a cricket bat, which resulted in his death as the appellant had seen it, and he is not aware how Monir death certificate was changed from injuries by machetes and swords, as it was a friendly cricket match.  The adjudicator found that there was no risk and bore in mind the low standard of proof which are her personal assessment.” 

12.The Applicant then concluded in his complaint that “the Adjudicator has done a shoddy job, inconsiderate and has failed miserably.”

13.Hence based on the above and notwithstanding the apparent confusion, it seems that the Applicant’s complaints of the Board’s decision can be summarized as follows:

(1)     that the adjudicator failed to give any or sufficient reasons for dismissing his appeal;

(2)     that the adjudicator was wrong to find that the Applicant had not been subjected to torture and that there was no substantial ground for believing that he would be subjected to torture upon his return to Bangladesh;

(3)     that the adjudicator failed to take into proper consideration all the COI available to the Board or took irrelevant consideration in assessing his claim; and

(4)     that the adjudicator was wrong in making adverse finding against his credibility onthe basis that he was unable to produce any documentary evidence of his membershipin BNP when there was none required back in 1990 when he first became a supporter.

14.The complaint under Ground (1) is plainly without basis as the adjudicator clearly did in paragraphs 44 – 60 of the Board’s decision properly set out her reasons for rejecting his claim and dismissing his appeal.  The Applicant may not agree with her reasons, but it is clearly wrong for him to assert that the adjudicator did not give any or sufficient reasons,and hence this ground is not reasonably arguable.

15.The same can be said about his complaint under Ground (2), as even on his own case the Applicant had never been subjected to any ill-treatment let alone being tortured between May 2011 when he was repatriated from Hong Kong to Bangladesh and September2013 when he left Bangladesh for China, and on that basis and on her adverse findings as to his credibility, the adjudicator was clearly entitled to conclude that there was no real risk of him being tortured upon his return to Bangladesh.  As such I do not find this ground reasonably arguable for his intended application.

16.As for Ground (3), the complaint is just a broad and vague assertion of the Applicantwithout any particulars or specifics or elaboration, and upon examining those COI available to the Board and referred to by the adjudicator, I do not find any basis or merit in this complaint of the Applicant, and that this ground is not reasonably arguable either.

17.For the remaining Ground (4) in which the Applicant argues that it was wrong for the adjudicator not to believe that he was a member of BNP on the basis that he was unable to produce any documentary evidence of his membership which COI show that since 2008 prospective members were required to complete membership documents, but as he first joined as a member back in 1990 when there was no such documentary requirement, he submits that the adjudicator therefore erred in her such finding.

18.Even assuming that it was true that the Applicant did join BNP well before 2008 when there was no such documentary requirement, that was not the only basis or reason for the adjudicator’s adverse finding on his credibility, as it was so amply set out in the decision as follows:

“ 47. The Board does not accept the Appellant was a member of the BNP for several reasons. Firstly, it found him to be evasive when answering questions about the practicalities of becoming a member of the party. Ultimately, his evidence was that he was not required to complete any form or document to become a member. However, as the Board put to the Appellant in the hearing, information from the Immigration and RefugeeBoard Canada provides that since 2008 a prospective member is required to meet a leader of the BNP local chapter (usually the Ward leader) and fill up the three parts of the standardized membership document … The Appellant’s clear evidence was that he did not complete any form or document, which in light of the independent information, suggests that he was not officially a member of the BNP. The Board finds the Appellant’s explanation that he was in training and after completion of that training the formalities would have been completed implausible. As it noted in the hearing, his evidence was that he was allegedly being trained for an official position and not just to become a member of the party and the Board finds it implausible that he would not have been required to formally join the party in these circumstances. As such, the Board does not accept the Appellant was a member of the BNP,as he claimed.

48. The Board also finds the Appellant’s evidence regarding his associationwith the BNP to be unconvincing and inconsistent. It notes prior to the hearing the Appellant had not raised anything in respect of the position of Publicity Secretary, instead claiming that he held no position within the party. However,during the hearing, the Appellant claimed to have performed the role of Publicity Secretary although also claiming that someone else held the position and he was in training for that position. The Board found the Appellant’s evidence through the hearing regarding his alleged position to be confusing and contradictory, with him both referring to himself as Publicity Secretary and this being the reason he was the primary target for harassment by Ali Ahmed due to his role in convincing people to join the party, yet also claimingthat he was not the Publicity Secretary but training to allegedly take over this position. The Board finds it implausible that the Appellant, who had been absent from Bangladesh since 2006 until his return to the country in 2011,at which time he allegedly started attending the BNP office, would be given an official position in the party, even in training.

49. It has also taken into consideration the Appellant’s evidence regarding his alleged activities as a member of BNP. Essentially he claimed in the hearing to be a messenger, taking letters, messages and documents to BNP leaders in the district, which the Board finds difficult to reconcile with the alleged position of Publicity Secretary he claimed to be fulfilling, whether officially or in training … The Board finds it concerning the Appellant did not discuss this particular activity when specifically asked earlier in the hearing about any other activities he engaged in to support the BNP apart from being a messenger person, particularly in light of his later evidence that this was the reason he was targeted by Ali Ahmed. The Board found the Appellant’s evidence in respect of this alleged activity to be unpersuasive.

50. In light of the findings above, the Board does not accept the Appellant was a member of the BNP or that he was an active supporter of the party ….

51. The Board also finds the Appellant’s claims regarding the alleged death of Monir, who he was allegedly falsely accused of murdering by Ali Ahmed, an AL leader … to also not be credible ….

52. Furthermore, the Board has taken into consideration the death certificate for Monir ….

53. The Board’s conclusions regarding the credibility of the Appellant’s claims are reinforced by his delay in seeking protection after his arrival in Hong Kong in August 2014, until he was arrested in February 2015 for his illegal stay in Hong Kong.  The Board has taken into consideration the fact the Appellant had previously travelled to Hong Kong in 2006 and had sought protection so therefore had knowledge of his right not to be returned to Bangladesh.  While the Appellant stated that everything is not disclosable all the time and some things need to be kept to oneself, the Board considers the Appellant’s delay in seeking protection until after he was located and arrested by the authorities is not consistent with a fear of serious harm in his home country ….”

19.It is therefore plain that the adjudicator’s adverse finding on the Applicant’s credibility was clearly not just based on the lack of documentary evidence of his membership or association with BNP but on the combination of a variety reasons as stated above.  In the premises I find this complaint of the Applicant also not reasonably arguable for his intended challenge.

20.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.

21.In the present case and as noted above, the Board rejected the Applicant’s claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision, and in the absence of any legal error or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.   

22.Furthermore, the fact 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.

23.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.

24.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 30^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