Islam Zohurul v. Torture Claims Appeal Board

HCAL 2173/2018

[2020] HKCFI 2285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2173 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 16 November 2015 and surrendered to the Immigration Department on 25 November 2015 when 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 Isalmary, Kursha, Mirpur, Kushtia, Bangladesh.  After leaving school he ran his own grocery store in his home village, and supported the political party Jamaat-e-Islami Party (“JEI”) by joining its student wing Islami Chhatra Shibir (“ICS”) regularly attended their local meetings and rallies during which they would from time to time come into conflicts with the local AL supporters.

3.One day in February 2015 while he and his fellow ICS supporters were attending a local JEI rally, they were attacked by a group of AL supporters during which the Applicant was knocked unconscious and was subsequently taken to the hospital for medical treatment.

4.Upon his discharge from the hospital and was resting at home, one day in March 2015 a group of AL supporters came to his home and attacked him and his mother and also vandalized his home.  They then took him away and kept him in their den for two days during which he was repeatedly beaten before he was eventually released, but when he later reported the matter to the police, they refused to take any action against the AL supporters.

5.The harassments from the AL supporters however continued when they would come to his grocery shop to break things and to steal money from the shop, but later when the Applicant heard that one of the local AL leaders had been killed and that the police started to arrest JEI and ICS members, the Applicant feared that he would be arrested, and in view of the persistent threats and harassments from the AL supporters, he therefore fled to Dhaka and later to Chittagong where he took shelter in a friend’s place, and on 10 November 2015 he departed Bangladesh 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 27 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 29 December 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”).

7.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 AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for the AL people to specifically target him as being just an ordinary member of the student wing of JEI or to have any further adverse interest in him after all these years, 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 157 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 Chittagong where it would be difficult if not impossible for those local AL supporters to locate him.

8.On 12 January 2018 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 4 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found such serious contradictions, inconsistencies and discrepancies between the Applicant’s evidence given in his appeal hearing and those given by him to the Director in his claim of which he was unable to explain or clarify, nor did he know anything about the relationship between ICS and JEI or of their political ideology or activities that it found the Applicant’s claim and factual assertions wholly unreliable and unestablished that his claim for non-refoulement protection failed on all applicable grounds.  

10.On 10 October 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 repeated his claim of fear of being harmed or killed by the AL supporters if refouled to Bangladesh but without putting forward any proper grounds for his application.  As such I do not find any reasonably arguable basis for his intended challenge.

11.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.

12.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 21 – 31 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.  

13.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.     

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 15^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