Islam Mahidul v. Jane Curzon Lo, Torture Claims Appeal Board

HCAL 2082/2018

[2020] HKCFI 1839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2082 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 43-year-old national of Bangladesh who entered Hong Kong illegally on 8 October 2015 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 villager over a personal dispute and/or by the local supporters of rival 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 District Jhenaidah, Bangladesh where he worked in various jobs including farming, constructions and making fabrics and handicrafts, got married and raised a family of two children, and became a supporter of the political party Bangladesh Nationalist Party (“BNP”) by regularly attending its local meetings and rallies.

3.In 2014 he had a dispute with a local villager Mamun over the right to fish in a pond next to the house of the Applicant’s family in the village in which Mamun insisted that it belonged to the government that only he had the right to fish in that pond.  As Mamun was a gangster with followers involved in illegal activities, the Applicant stopped fishing in the pond.   

4.However, shortly thereafter Mamun was arrested by police over other matter and was put in jail, during which the Applicant resumed fishing in the pond, but when he was seen by Mamun’s followers, he was warned that when Mamun came out from jail, he would go after him which caused fear to the Applicant.

5.Around the same time the Applicant was twice approached by some local AL supporters to invite him to join their party, and when he refused he was beaten by them which caused him cuts and bruises all over his body that required medical treatments at the local hospital.      

6.As a result the Applicant felt it was no longer safe to remain in Bangladesh, and so he fled from his home to take shelter in his in-law’s place where he made arrangements to leave the country, and on 5 October 2015 he departed 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 (“NCF”) on 28 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

7.By a Notice of Decision dated 10 August 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 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 Mamun and those AL supporters upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, 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 working experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for Mamun or those local AL supporters to locate him.

9.On 24 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended two oral hearings on 30 May 2018 and 6 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s claim of his dispute with Mamun incredible and rejected the basis of his fears of any real risk that he would be harmed or killed by Mamun or those local AL supporters upon his return to Bangladesh, and that in any event in the absence of any official involvement that with state/police protection available as well as reasonable internal relocation within Bangladesh for the Applicant to safely move to other areas away from his home district in large cities without any risk of being located by Mamun or those local AL supporters that his claim for non-refoulement protection failed on all applicable grounds.   

11.On 2 October 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)     misdirection in law in that the adjudicator misdirected herself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)     procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into the COI conditions and to have regard to relevant and up-to-date COI research resulting in unfair dismissal of his case;

(3)     irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)     irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)     irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

(6)     irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)     procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)     procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(9)     procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

12.These are however all just broad and vague assertions of the Applicant containing several pages of 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 adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. 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 NCF, records of his screening interviews and the Director’s decisions 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 NCF was completed on his own instructions with legal assistance, and that at his oral hearings 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.Essentially the Applicant’s claim was rejected by the Board on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 28 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 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.    

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 11^th day of August 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