Shahadat Mollah v. Torture Claims Appeal Board

HCAL 1546/2018

[2020] HKCFI 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1546 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 entered Hong Kong illegally on 8 April 2006 and was arrested by police on 5 February 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by his paternal uncle over a land dispute and/or by the police over a false charge made against him by his uncle, and when his torture claim was rejected, he raised a claim for non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Puali, District Madaripur, Bangladesh.  After leaving school he assisted his father in farming on his father’s land inherited from his grandfather.

3.As his paternal uncle, a member of the political party Awami League (“AL”) and an influential man in the village, was however not given any share in the land by the grandfather, and therefore often quarrelled with his father over the inheritance and demanded for a share of the grandfather’s land.

4.One day in February 2006 his uncle came with some men to his home while the Applicant was away, and demanded from his father for his share of the land, and when his father refused, his uncle and his men beat him badly.

5.After the incident the Applicant was told by his family to take shelter at his aunt’s home to avoid his uncle, but when he heard that his uncle was also looking for him, the Applicant therefore fled to a neighbouring village to hide in a friend’s home.

6.Later when he heard that his uncle had made a false claim against him to the police, the Applicant decided that it was no longer safe to remain in Bangladesh, and so on 4 April 2006 he departed for China, and from there he later sneaked into Hong Kong and raised his torture claim, and when it was rejected, he then sought for non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 19 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.By a Notice of Decision dated 16 November 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except torture risk but including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to Bangladesh as low due to the absence of past ill-treatment from him, that there was no reliable evidence that he was wanted by the local police over any charges, that in any event it was a private family dispute between his father and his uncle over property 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 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 working 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 his uncle to locate him.

9.The Applicant then 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 16 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence about his uncle’s dispute with his father over the inherited land that it doubted about his claimed threats from his uncle towards him or his family or that he had had any political involvement in Bangladesh prior to his departure, and concluded that there is not a real risk that the Applicant will suffer harm of any kind for any of his claimed reasons upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

11.On 3 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)      procedural unfairness in 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)      procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)      procedural unfairness in 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 errors or unfairness;

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

(5)      that the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which led to its groundless speculations that it would be safe for him to return to his country of origin; and

(6)      procedural unfairness in that the hearing bundle was given to the Applicant just six days before his appeal hearing with the majority of documents in English without translation thus giving him insufficient time to prepare for the appeal hearing and unable to find the right interpreter to assist him in his appeal.  

12.These are however all just 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 in what way did the Board unlawfully fetter its discretion or that the adjudicator act in a procedurally unfair manner, or what source of news relied on by the Board was 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.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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.

14.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.

15.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 SCF, records of his screening interviews and the Director’s decision 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 SCF 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.

16.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 72 of its decision with the benefit of hearing his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.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.     

18.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.

19.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 July 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