Shamsul Mohammad v. Torture Claims Appeal Board

HCAL 723/2018

[2020] HKCFI 2188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 723 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 32-year-old national of Bangladesh who entered Hong Kong illegally on 9 August 2014 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 his uncle over a land dispute and/or by some 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 Brahmanbaria, Bangladesh where his father was a farmer and still lived there with his mother.

3.Whilst at school he joined the student wing of the political party Jamaat-e-Islami Party (“JEI”) much to the displeasure of his uncle who was an influential AL supporter in their home village.

4.In about 2010 his uncle wanted to buy his father’s farmland, but was refused by his father who intended to pass it onto the Applicant.  As a result his uncle and his followers forced themselves onto the land to put pressure on the Applicant’s father to sell the land to him, but as his father still refused, the situation became a deadlock despite repeated attempts by the Applicant to try to discuss with his uncle who instead sent his followers to threaten and beat him on several occasions.  To avoid any further confrontation the Applicant moved to Dhaka to work as a packaging worker.

5.One day in 2013 when he went to a neighbouring village to participate in JEI’s election campaign, he was threatened and attacked by the local AL supporters but managed to escape from the scene without serious injuries.

6.In January 2014 he was told by his mother that his father was attacked by a group of AL supporters after he refused to yield to their demand for money, and as she feared the same would happen to the Applicant, she therefore advised him that for his own safety he should leave Bangladesh, and so in July 2014 the Applicant 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 5 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 26 October 2016 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 found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his uncle or by those local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by those AL supporters for political reason, that his problem with his uncle was a private family dispute 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 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 his perceived enemies to locate him.

9.On 8 November 2016 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 10 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s claim of disputes with his uncle and a group of local AL supporters but found no evidence of any real intention on their part to harm or kill the Applicant, that they were personal disputes without any official involvement that state/police protection would be available to him if resorted to as well as reasonable internal relocation within Bangladesh for him to move safely to other area away from his home district without any risk of being located by his perceived enemies  that his claim for non-refoulement protection failed on all applicable grounds.  

11.On 25 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 stated that the decision is unreasonable in that the Board failed to consider all the matters raised in his claim and/or to give adequate reason for its decision but without providing any particulars or elaborations as to how it did so or to put forward any further or proper ground for his intended challenge.  Nor did he request any oral hearing for his application.  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 for his intended challenge.

12.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.

13.In the Applicant’s case, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.     

14.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.

15.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 7^th 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