Chowdhury Arif v. Torture Claims Appeal Board

HCAL 837/2018

[2020] HKCFI 2130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 837 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 44-year-old national of Bangladesh who entered Hong Kong illegally on 3 February 2016 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 certain 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 Mirpur, Dhaka, Bangladesh.  After leaving school he made his living by renting out his own property for income.  After marrying his wife, he moved the family to Lalbagh, Dhaka where he become a supporter and ordinary member of the political party Bangladesh Nationalist Party (“BNP”) regularly attended their local meetings and rallies, during which he and his fellow BNP supporters would come into conflicts with the AL supporters.

3.On one such occasion in March 2009 while he was having a meeting with his fellow BNP supporters in the office, a group of AL supporters suddenly stormed in and attacked them with hockey sticks and cricket stumps during which he was hit in his waist and back and was subsequently taken to the hospital for medical treatments.

4.After the incident the Applicant became fearful for his safely and stopped participating in any BNP political activities, but as he continued to receive threats and harassments from the AL supporters, and after one of his fellow BNP members had died from another assault by the AL people in 2015, the Applicant moved his family to Narayangonj to stay at his aunt’s place, but as he was still fearful of further threats from those AL supporters, he therefore departed Bangladesh on 28 January 2016 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 20 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 28 April 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”).

6.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 those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that given his low status in BNP with no official position that there is no reason why he would be specifically targeted by the AL supporters, 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 spread across a vast territory 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 where it would be difficult if not impossible for those AL supporters to locate him.

7.On 11 May 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 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found such serious inconsistencies and discrepancies in the Applicant’s evidence and with such contradictions from those given earlier to the Director that it did not accept his account of what happened in relation to those incidents in Bangladesh or that they occurred in the way as claimed, and rejected his claim to have ever been a BNP member or had been threatened or attacked as a result or that he would be of any adverse interest to the AL people that it concluded that he would not be at any risk of any proscribed harm upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 14 May 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 a copy of the decision without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.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.

11.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 34 – 54 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.  

12.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.     

13.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.

14.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 1^st day of September 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