Hosain Mohammad v. Torture Claims Appeal Board

Case No.HCAL 999/2018[2021] HKCFI 362

Court

High Court CFI

Date16 Feb 2021

Judge—

Case Document

100%Judiciary

HCAL 999/2018

[2021] HKCFI 362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 999 of 2018

BETWEEN

	Hosain Mohammad	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Bangladesh who entered Hong Kong illegally on 16 April 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 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 Daria Pur, Pak Hareshpur, Bijoynagar, Brahmanbaria, Chittagong, Bangladesh. After leaving school he moved to Dhaka where he operated a grocery store and became a supporter of the political party Jamaat-e-Islami (“JEL”) regularly attended their meetings and rallies.

3.In about 2013 the Applicant started to come into conflicts with some of the local AL supporters during which he was threatened and harassed by them, and as he became fearful for his life, he departed Bangladesh on 4 April 2014 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police and was referred to the Immigration Department for investigation, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 31 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 19 November 2015 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 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 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 168 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 where it would be difficult if not impossible for those local AL supporters to locate him.

6.By a Notice of Further Decision dated 21 June 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

7.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 2 December 2015, and for which he attended an oral hearing on 6 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 24 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.On 1 June 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 was unreasonable in that the Board failed to consider all the matters raised in his claim but without providing any particulars or elaboration how it was so, nor did he put forward any other proper ground for his intended challenge. As such and in the absence of any error of law or irrationality 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.

9.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.

10.In the circumstances 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.

11.Furthermore, the Applicant on 16 November 2020 filed an affirmation to request to “cancel” his application as he wants to return to his home country. In the premises and as I am not satisfied that there is any prospect of success in his intended application for judicial review, I accordingly dismiss his leave application.

Dated the 16^th day of February 2021.

(TAM Kam-man)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 16^th February 2021 Hosain Mohammad Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16^th February 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 2679/15/12/8/B351 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9002185/17 (Formerly RBCZ 2118/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1