Hosen Mohammad Uzzal v. Torture Claims Appeal Board and Another

HCAL 518/2018

[2020] HKCFI 1916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 518 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 30-year-old national of Bangladesh who entered Hong Kong illegally on 18 April 2014 and was arrested by police on 24 April 2014.  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 certain local supporters of rival political party Awami League (“AL”) and/or by the police over a false charge made by those AL supporters against him.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born in Taluk Karara, Bangladesh but was raised in Village Khaskorra, Alamdanga, Chuadanga.  After leaving school he assisted in his father’s tobacco business and followed his family’s footstep to become a supporter of the political party Bangladesh Nationalist Party (“BNP”) regularly assisted in providing delivery service for the elderly in his home village.

3.One day while he was riding his bicycle on his way home, he was abducted by 5 AL supporters and was taken to a jungle where he was demanded for money and was punched and kicked all over his body until he lost consciousness, and was only released after his uncle had paid a ransom to the kidnappers.

4.Afterwards the Applicant moved to stay with his uncle in Chittagong until January 2013 when he returned to his home village.  One day while he was having tea with his friends in a tea stall in Harinakundu Town, he saw two groups of supporters of rival AL and BNP having an argument which turned into a mass brawl, and when the police arrived, the Applicant then left as he did not want to get involved.

5.However, several days later he was arrested by police together with many of his BNP supporters after the AL supporters had made a false charge against them, and that he was only released after his uncle had paid a bribe to the police.         

6.As he was fearful of further threats from the AL supporters and the police, the Applicant felt it was no longer safe to remain in Bangladesh, and so on 22 November 2013 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 on 18 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 27 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 Ordinance, Cap 383 (“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 found such inconsistencies and discrepancies in his evidence that doubted his credibility, that in any event the level of risk of harm from those AL supporters upon his return to Bangladesh was assessed as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of him being specifically targeted by the AL people nor is there reliable evidence that he was being pursued by the police given the fact that he was able to obtain his passport and to leave Bangladesh without any problem, that in the absence of any official involvement that state 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 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 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 those AL supporters to locate him.   

9.By a Notice of Further Decision dated 28 June 2017 the Director again rejected the Applicant’s claim in the absence of any response from him 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 Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 11 July 2016, and for which he attended an oral hearing on 9 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 11 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found glaring contradictions and discrepancies in the Applicant’s evidence that his claim of fear of harm from the AL supporters or the police was not credible, and that in any event with reasonable internal relocation available for him to move safely to other part of Bangladesh away from his home district to re-establish his life and work without any risk of being located by those AL people that his claim for non-refoulement protection failed on all applicable grounds.

12.On 29 March 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 in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)     lack of legal representation in his appeal before the Board;

(2)     that their decisions were unreasonable and were based on assumptions; and

(3)     that the Director and the Board failed to take into consideration of the facts that the Applicant was uneducated and without legal assistance and had assumed that he did not have a case.   

13.For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

14.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, nor do I think this ground reasonably arguable.

15.As for his remaining complaints that the decisions of the Director and the Board were unreasonable and based on assumptions, they are just broad and vague assertions without any particulars or elaborations as to how they were so or what assumptions were wrongly relied on.  As such I do not find any of them reasonably arguable for his intended challenge.

16.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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

17.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 19 – 22 of its decision with the benefit of hearing him in 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. 

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

19.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.

20.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 12^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