Miah Mohammad Faruq v. Torture Claims Appeal Board

HCAL 2588/2019

[2021] HKCFI 338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2588 of 2019

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  the Application for Leave to Apply for Judicial Review be reinstated; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The Applicant is a 48-year-old national of Bangladesh who arrived in Hong Kong on 9 July 2018 with permission to remain as a visitor up to 23 July 2018 when he did not depart and instead overstayed, and on 24 July 2018 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 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 Village Balapurer Char, Meghnabazar, Narsingdi Sadar, Narsingdi, Bangladesh.  After leaving school he worked as a farmer in his home village before running a garment shop, and became a supporter of the political party Bangladesh Nationalist Party (“BNP”).

3.In May 2016 during an election in his home district, the Applicant and his fellow BNP supporters were attacked at the polling station by a group of AL supporters with sticks and knives, but he managed to flee from the scene unhurt, and when subsequently he heard that the AL people had made false claims to the police against the BNP supporters, he fled to Chittagong to take shelter at his aunt’s place. 

4.Later when he returned to his home district to resume running his shop, a group of AL supporters started to extort money from him to which he always tried to comply, but when they increased their demand in June 2018, and when he was unable to pay, they threatened to kill him next time if he still failed to pay the money.

5.About one week later the AL supporters returned to his shop to demand fro payment, and when the Applicant was still unable to pay, they bombed and burned down his shop, and while he managed to escape without injuries, he feared of further attacks and therefore fled to Dhaka, and from there he departed Bangladesh on 9 July 2018 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 21 January 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.       

6.By a Notice of Decision dated 27 February 2019 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 local 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 of any real intention on the part of those AL supporters to seriously harm the Applicant, 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 (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 159 million people 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 such as Dhaka where it would be difficult if not impossible for those local AL supporters to locate him.

8.The Applicant then 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 July 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 29 August 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found such inconsistencies and contradictions in the Applicant’s evidence as to his claim of being a BNP supporter threatened by AL supporters that it did not accept that he was ever involved with BNP which led to any threats from rival AL supporters, that in any event violent conflicts between supporters of rival political parties were common in Bangladesh that it is doubtful that the Applicant had been specifically targeted by AL supporters, and concluded that there is no real risk that he will face any of the proscribed forms of harm should he return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.      

10.On 5 September 2019 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 Board had disregarded the danger and threats he would face in his home country without putting forward any particulars or elaboration how it was so, or any other proper ground for his intended challenge.  Nor did he request any oral hearing for his application. 

11.Before his application could be dealt with by the court, the Applicant on 9 March 2020 filed an affirmation to withdraw his application, and on 19 March 2020 his application was allowed by this court to be so withdrawn.

12.However, on 23 July 2020 the Applicant filed another affirmation to request to be allowed to proceed with his application as his problem in his home country had not been solved, and although he was unable to provide any further details for his assertion, in order to save time and costs, I allowed him to restore his application and proceeded to consider the merits of his intended challenge. 

13.As noted above, the Applicant did not put forward any grounds for his intended application, nor was he able to do so at the hearing other than just repeating his claim that his life would still be in danger if he is to return to his home country.  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.       

14.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. 

15.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 71 – 135 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.    

16.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. 

17.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. 

18.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 9^th day of February 2021.

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