Golam Hakkani v. Torture Claims Appeal Board

HCAL 699/2018

[2021] HKCFI 961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 699 of 2018

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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Bangladesh who entered Hong Kong illegally in May 2013 and was arrested by police on 2 July 2013.  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 some local people of the political party Awami League (“AL”) for refusing to pay extortion money to them or to do drug trafficking for them.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Bahadurpur, District Brahmanbaria, Bangladesh.  After leaving school he went to Gandaria to learn in his uncle’s business before starting his own business in 2008 manufacturing army supplies in Mirpur.

3.However, in early 2012 some AL people started to come to his business premises to demand for protection moneys which the Applicant would pay whatever he could afford to avoid trouble, but soon they would demand that he should more money or else to run illegal drugs for them, and when he refused, they beat him into unconsciousness, and then kidnapped him for ransoms from his family,    

4.Upon his subsequent release and return home, he was advised by his family to leave the country for his own safety, and so on 9 March 2013 he departed Bangladesh 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 (“NCF”) on 3 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

5.By a Notice of Decision dated 11 August 2016 the Director of Immigration (“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 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”).

6.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 people 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 such as Chittagong where it would be difficult if not impossible for those local AL people to locate him.

7.By a Notice of Further Decision dated 21 August 2017 the Director again rejected the Applicant’s claim upon receiving and considering additional representations from him 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”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 19 August 2016, and for which he attended an oral hearing on 9 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 20 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found the Applicant’s evidence about the threats received from the AL people while he was allegedly running his business vague without details, confused, evasive and internally inconsistent and of which he was unable to explain or clarify despite given the opportunity to do so that the Board had serious concerns about his credibility that it rejected his claim of having run a business or that he had ever been threatened by any AL people or that he would face any real risk of harm for any reasons upon his return to Bangladesh that his claim for non-refoulemnent protection failed on all applicable grounds.     

10.On 23 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 subsequent skeleton submissions dated 13 May 2020, the Applicant cited some authorities and put forth the following grounds for his intended challenge:

(a)   Ground 1: that the Adjudicator was unreasonable in making speculative findings with regard to the assessment of risk;

(b)   Ground 2: that the Adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endeavor; and

(c)   Ground 3: that the Adjudicator made mistake of fact and/or failed to take a relevant factor, namely that the Applicant’s risk of harm emanates from his political opinion generally.

11.However, upon close examination of the skeleton submissions, all of these complains of the Applicant appear to me to be something just copied from those used or applicable to a totally different case of another applicant from Bangladesh, as they referred to various facts said to have been mentioned by the Adjudicator but simply do not correspond to those actually stated in the Board’s decision, nor are they factually accurate or relevant to the asserted bases of the Applicant’s claim even on his own case. There are many examples. 

12.Under Ground 1 in which the Applicant complains in paragraph 9 of his submissions over the Adjudicator’s finding at paragraph 26 of the Board’s decision about his group managed to escape from the attack of the AL people with one of them armed with a pistol about to shoot at the Applicant and his group, when in fact the Adjudicator at paragraph 26 referred to what the Applicant had stated about his contact with his mother and siblings after his arrival in Hong Kong, which is wholly different to what the Applicant has asserted in paragraph 9 of his skeleton submissions as if he were referring to a totally different case.

13.In Ground 2 in which the Applicant complains about the Adjudicator referring to only one COI in assessing his claimed fear of persecution due to his political views and opinion ([25] – [27] of his submissions), which is again wholly different to the claimed facts of his own case which is one based on fear of harm from the AL people over his refusal to pay extortion money for running his business which had nothing to do with any political views or opinion of his. Again the Applicant was complaining about something which the Adjudicator simply did not do.

14.The same can be said about Ground 3 in which the Applicant referred to the Adjudicator mentioning about “grudge harboured by AL” in paragraphs 13, 23, 28 and 33 of the Board’s decision, and for consistently attributing his “fear solely to incidents of the 2001, 2014 and 2019 election” due to his membership in the political party Bangladesh Nationalist Party (“BNP”) ([29] – [30] of his submissions), when as noted above even on his own case the Applicant had never been involved in any political activities in Bangladesh in the past, let alone to be a member of BNP, and that in paragraphs 13, 23, 28 and 33 of the Board’s decision there was never any mention of any grudge harboured by the AL people against him. Again the Applicant was referring to something wholly different to the asserted facts and basis of his own case.  

15.As such I do not find any of these grounds or complaints of the Applicant arguable at all for his intended application, 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 either.

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.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 12 – 83 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.   

18.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.       

19.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. 

20.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 April 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