Khandakar Alimuzaman v. Torture Claims Appeal Board

HCAL 1965/2018

[2020] HKCFI 2124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1965 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 arrived in Hong Kong on 25 March 2006 with permission to remain as a visitor up to 8 April 2006 when he did not depart and instead overstayed and was arrested by police on 11 November 2010.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his uncle over a land dispute in his home district. 

2.The Applicant was born and raised in Village Teljuri, District Faridpur, Bangladesh where his father and paternal uncle inherited his grandfather’s farmland in equal shares, and after leaving school he worked in his father’s share of the farmland.

3.In 2004 his father allowed his uncle to use one of his farmland to cultivate crops for one year at his uncle’s request, but later his uncle refused to return the land to his father, which had thus become a constant dispute between the two families, and when the Applicant tried to reason with his uncle over the dispute, his uncle became furious at him, and on one occasion in January 2006 after the Applicant was assaulted by his uncle and his men, he became fearful for his life, and therefore departed Bangladesh on 16 March 2006 for China, and from there he later travelled to Hong Kong where he overstayed, and upon his subsequent arrest by the police he raised his torture claim later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism (“USM”), for which he completed a Supplementary Claim Form (“SCF”) on 17 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 19 December 2014 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”).

5.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 low intensity and frequency of past ill-treatment from him, that it was mainly a private family dispute between his uncle and his father 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 (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 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 it would be difficult if not impossible for his uncle to locate him.

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing before the Board during which he gave oral evidence and answered questions raised of his claim by the adjudicator for the Board, and on 31 August 2015 his appeal was dismissed by the Board upon finding it was a private family dispute between him and his uncle and with state/police protection that he would not face any risk of harm upon his return to Bangladesh. 

7.On 9 September 2015 the Applicant filed his Form 86 under HCAL 185/2015 for leave to apply for judicial review of the decisions of the Director and the Board, and on 22 April 2016 his application was refused by Hon Li J upon finding none of the grounds put forward by him reasonably arguable, that there was no error in law or in procedure in the decisions of the Director and the Board, and that there was no realistic prospect of success in his intended application.

8.More than one year later on 14 September 2016, the Applicant issued a summons under HCMP 2452/2016 for extension of time to appeal against that decision, as he was then seriously outside the 14-day period to appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A, and on 22 November 2016 the Court of Appeal refused to extend time to the Applicant to pursue what was deemed to be a hopeless appeal.    

9.One week later on 29 November 2016, the Director on his own initiative invited the Applicant to submit any additional information regarding risk to any of his absolute or other non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By a letter dated 9 December 2016 the Applicant submitted further representations to the Director which may be summarized as follows:

(a)   that his life would still be in danger in Bangladesh where his enemies were still looking to kill him;

(b)   that there were serious crimes and gangsters in his home area that would post serious danger to him;

(c)   that in 2016 gangsters had set fire on many houses in his home area including those of his family and relatives; and

(d)   that Bangladesh is a very violent country that he was afraid to return to his home country.      

11.By a Notice of Further Decision dated 15 December 2016 the Director again rejected the Applicant’s claim upon finding those additional information were not relevant to his case, and that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including BOR 2 risk being violated upon his return to Bangladesh.

12.On 29 December 2016 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, and for which he attended another oral hearing on 5 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 11 September 2018 his appeal was again dismissed by the Board which also confirmed the Further Decision of the Director.

13.In its decision the Board found the Applicant’s evidence on events which were said to have occurred in Bangladesh had occurred years after his arrival in Hong Kong, that they were mainly based on information given to him by others, while the documents submitted by him in relation to his BOR 2 claim did not relate to him, that his assertion of purported police reports were false allegations made against his younger brother and others many years after his departure of Bangladesh, and that he had failed to establish that there is a real chance that if returned to Bangladesh he will be arbitrarily deprived of his life under BOR 2 risk.    

14.On 18 September 2018 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of Board’s Second Decision, and on this occasion he put forward the following grounds for his intended challenge:

(1) misdirection in law in that the adjudicator took 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 COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(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 himself 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 his 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.  

15.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.

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.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.

18.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 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 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.

19.In the Applicant’s case, the Board rejected his claim essentially on his failure to establish any real chance of him being arbitrarily deprived of his life under BOR 2 risk upon his return to Bangladesh.  On the facts of the Applicant’s claim and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, and as found by both the Director and the Board, the Applicant has failed to identify from those additional facts and documents submitted by him that could in anyway advance his claim under the BOR 2 risk ground.  As such 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.  

20.Furthermore, the fact is that it has been established by the Director in his earlier 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 that there is simply no justification to afford him with non-refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526.  Up to now the Applicant has failed to put forward any reasonably arguable basis to challenge that finding of the Director, whose decision has been confirmed by the Board, and which the court in the previous proceedings has found to contain no error in law or in procedure.      

21.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.

22.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