Akhondo Shakil v. Torture Claims Appeal Board

HCAL 2256/2018

[2021] HKCFI 955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2256 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 (counsel for) the Applicant in open court / the Applicant being absent 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 32-year-old national of Bangladesh who entered Hong Kong illegally on 16 February 2016 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 the 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 Shariatpur District, Bangladesh. After leaving school he worked as a driver and followed his family’s tradition to support the political party Bangladesh Nationalist Party (“BNP”) in which all his uncles and cousins held important positions including one as the vice president of the District Committee in Shariatpur District, and so in 2000 the Applicant joined the party’s local student wing as a member actively attending its various activities, and in 2006 he formally joined BNP as a member and assisted in the organization of their elections activities.

3.In 2009 AL won the general election and became the country’s ruling party, and one of their local leaders started to forcefully occupy the ancestral land of the Applicant’s family which led to various legal actions and court proceedings as well as violent clashes between his family members and that local AL leader and his followers as well as the local supporters of the two parties during which the Applicant had on a several occasions suffered personal injuries from attacks by the AL people.       

4.To avoid further attacks the Applicant in 2014 moved away from his home district to take shelter at one of his uncles’ place in the neighbouring village, but when he later heard that those local AL people were looking for him everywhere, he felt it was no longer safe to remain in Bangladesh, and on 6 February 2016 he 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 (“NCF”) on 29 June 2016 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 January 2017 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 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”).

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 there is no reliable evidence that he had been specifically targeted by AL given his low position in BNP while other members of his family who had held more important positions in BNP were still residing in the same home district without any harm from the AL people, 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 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 where it would be difficult if not impossible for those local AL people to locate him.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 13 July 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 9 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found such inconsistencies and discrepancies in the Applicant’s evidence in relation to key aspects of his claim during his appeal hearing which were different from those previously given to the Immigration Department that it had significant concerns with his credibility in general, and considered that he was tailoring and revising his evidence in an attempt to maintain consistency with his written claims that it did not accept that he had been targeted by the AL people or anyone else for harm and concluded that his claim for non-refoulement protection failed on all applicable grounds.     

9.On 18 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his subsequent skeleton submissions dated 20 April 2020 he cited various authorities and put forward the following grounds for his intended challenge:

(1)  that the Adjudicator was unreasonable in making speculative findings with respect to the assessment of risk when the Applicant had presented a claim which is coherent and plausible which should on balance be capable of believed;

(2)  that the Adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endevour by referring to only one source of COI which provided only the basic information about the city of Dhaka and could not assist in the assessment of risk beyond providing the barest of facts relating to the viability of internal relocation which had no bearing on whether the Applicant was at risk of political violence from the AL people; and

(3)  that the Adjudicator made mistake of fact and/or failed to take a relevant factor that the Applicant’s risk of harm from his political opinion generally and that he was in fear of harm emanated from his membership in BNP and the risk of harm at the hands of the AL members with the confrontation on Election Day merely being a triggering event, and by tying the risk of harm solely to the events of 2001 that the Adjudicator failed to properly address the risk of further harm on the basis of the Applicant’s political opinion that is ongoing and without temporal limit and thus failed to address a central and material issue in his appeal.

10.However, upon close examination of the affirmation, these grounds appear to me something just copied from those used in a different case of another applicant, as the references of various facts said to have been mentioned by the Adjudicator simply do not correspond with those actually stated in the Board’s decision, nor are they factually accurate or relevant to the asserted facts or basis of the Applicant’s own case. There are many examples.

11.In paragraph 9 of his submissions in support of his ground 1, the Applicant stated this:

“With regard to the ‘1^st incident’ whereby me and my friends were attacked by a number of AL members, the Adjudicator found at 26 that:

“That my group could manage to escape while being outnumbered shows the AL had no intention to kill or harm seriously to me, especially when one of the attackers was armed with a pistol and had it drawn out to shoot …”

12.In the Board’s decision, paragraph 26 in fact referred to a wholly different matter as follows:

“The Board indicated it had concerns that when asked about the age he was when he joined Chatra Dal, his oral evidence commenced with a statement that he was around 20 …”

13.In fact, according to both the decisions of the Director and the Board, the 1^st incident referred to by the Applicant was the building of a mosque by the local AL leader on the ancestral land of his family (see [8.9] of the Director’s decision and [15a] of the Board’s decision) which is factually different from the 1^st incident referred to by the Applicant about an attack of him and his friends by a number of AL members in paragraph 9 of his submissions.

14.Similarly, the Applicant complains in Ground (3) that the Adjudicator made mistake of fact and/or failed to take a relevant factor namely that his risk of harm from his political opinion generally, and stated in paragraph 29 of his submissions:

“From 13, 23, 28 and 33 of the Decision, it is evident that the Adjudicator considered the basis of my claim to be the ‘grudge’ harboured by AL, and according throughout the Decision he consistently attributes my fear solely to the incident of the 2001 and 2014 and 2019 election.”

15.In fact, nothing of this sort including any ‘grudge’ harboured by any AL people against the Applicant were ever mentioned by the Board in those paragraphs or anywhere in its decision, and even on his own case the Applicant had never mentioned about any ‘grudge’ of any AL people which formed any basis of or led to his claim in any of his material or information including his NCF provided to the Director or to the Board by way of any oral evidence during his appeal hearing.

16.As for those incidents which he referred to in the same paragraph in respect of the elections in 2001, 2014 and 2019 which he claimed the Adjudicator had attributed to his fear, apart from the fact that the Adjudicator never did as alleged, I note that in 2001 the Applicant was only aged 13 and that even on his own case there were no incidents until after AL won the election in 2009, while in 2019 he was already in Hong Kong and there was never any mention of any incident in that year anywhere in his claim.

17.Again, for his Ground (2) in which he complains that the Adjudicator failed to properly consider the relevant COI, the Applicant in paragraph 25 of his submissions stated that the Adjudicator only referred to one source of COI namely the World Population Statistic Website and about the city of Dhaka, which is factually wholly incorrect as there is simply no such reference made in the Board’s decision, as the Adjudicator as noted above rejected the Applicant’s claim entirely on his credibility, and did not find it necessary to refer to any COI at all which may be relevant to the availability of either state protection or internal relocation to places such as Dhaka.

18.As such and in the premises, it is clear to me that none of the grounds raised by the Applicant are factually relevant or applicable to his case, and as such it is clear that they are not reasonably arguable for his intended challenge.     

19.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.

20.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 61 – 77 in 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.  

21.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.     

22.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.

23.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