Shahid Mohammed v. Torture Claims Appeal Board

HCAL 628/2018

[2020] HKCFI 2137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 628 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 34-year-old national of Bangladesh who entered Hong Kong illegally on 27 January 2016, and on 28 January 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his paternal uncles over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gorasthan, Maigarchar Hat, Lohagara, Chittagong, Bangladesh.  After leaving school he assisted his father in farming on his father’s farmland in the village.

3.His paternal grandfather had two wives, with the first wife given birth to his father and another uncle, while the second wife gave birth to eight other uncles of the Applicant.

4.In 1999 upon the passing of his grandfather, his grandfather’s land was passed to his male descendants with half to the Applicant’s father and his elder brother born to the first wife, and the other half to the Applicant’s eight paternal uncles born to the second wife.  In 2007 with the passing of his elder brother, the Applicant’s father became the sole owner of half of the family’s land.

5.This caused the Applicant’s eight other uncles to resent the situation and led to their frequent demands that the entire family land be re-divided equally amongst them, and thus created constant conflicts with the Applicant’s family.

6.In late 2010 when the Applicant’s father decided to construct a new home for his family on his share of the land, the Applicant’s uncles objected to it as they claimed to have an interest in the land, but the Applicant’s father ignored them, and upon the construction of the new home, the Applicant and his family moved into the property.

7.One day in late 2011, while the Applicant and his father were farming on the farmland, his uncles and other men came to the Applicant’s home to demand that his family to vacate the property which led to a fight that resulted in the death of one of the uncles’ follower.

8.Afterwards the Applicant’s uncles filed a charge with the police against the Applicant’s father and his family that his father was subsequently arrested by the police, but when the police were unable to find any evidence against him, the Applicant’s father was released without charge on the following day.

9.As the Applicant’s father feared that the uncles who were all supporters of the ruling political party Awami League (“AL”) and with influential political connections would continue to cause trouble to his family, the Applicant’s father therefore advised the Applicant and his brother to flee home for Dhaka where they stayed for 6 months without incidents, and from there the Applicant subsequently went to Oman where he found a job as a cleaner until mid-2015 when he returned to Bangladesh and stayed in Dhaka.

10.However, when he heard that his uncles were still looking for him everywhere, the Applicant felt that it was not safe to remain in Bangladesh, and so on 13 January 2016 he departed for China, and from there he later sneaked into Hong Kong and surrendered to the Immigration Department when he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 17 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

11.By a Notice of Decision dated 30 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”).

12.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed risk of harm from his uncles was real and foreseeable upon his return to Bangladesh due to the absence of past ill-treatment from them, that his uncles’ dispute over the family land was only with his father as the legal owner with no reason or purpose to instead target the Applicant for harm, that since his parents and the rest of his family were still living in their home village unharmed by his uncles 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 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 140,000 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 he had stayed before without incidents and where it would be difficult if not impossible for his uncles to locate him.

13.On 12 September 2017 the Applicant 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 26 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 4 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

14.In its decision the Board found the Applicant’s evidence given at his appeal hearing inconsistent, vague and confused, and was also inconsistent and difficult to reconcile with those given to the Director that it had serious concerns and doubts about the reliability of his claim of fear of harm from his uncles over their land dispute with his family, and concluded that the Applicant was not a reliable witness and that his claim was not credible and had been fabricated to create a claim for protection, and that there are no substantial grounds for believing that he faces a risk of being subjected to harm in Bangladesh that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.      

15.On 12 April 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 merely attached copies of the decision and other previously submitted documents without putting forward any proper ground for his intended application.  Nor did he request any oral hearing for his application. As such I do not find any reasonably arguable basis 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 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.

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 44 – 92 of its decision with the benefit of hearing him in his oral evidence and his 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 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.

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 31^st 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