Miah Sharif v. Torture Claims Appeal Board

HCAL 1410/2018

[2021] HKCFI 1097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1410 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 31 -year-old national of Bangladesh who arrived in Hong Kong on 13 January 2014 with permission to remain as a visitor up to 20 January 2014 when he did not depart and instead overstayed, and on 18 February 2014 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 the local supporters of rival political party Awami League (“AL”) and/or by the police over a false charge made against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Thanarkandi, District Brahmanbaria, Chittagong, Bangladesh. After leaving school he remained living with his parents and in 2010 started to support the political party Bangladesh Jamaat-e-Islami (“JEI”) by regularly putting up their posters in the village and attending their local meetings and rallies.

3.In 2011 he received some hostile and threatening demands from the local AL supporters to stop supporting JEL, and when he refused, he was attacked and beaten by those AL supporters on 2 occasions, and after the last assault in 2012 he fled to Mymensingh to take shelter in a relative’s place, during which he heard from a friend that the police in his home district were looking for him over a false charge which he suspected that the AL people were behind, and so he fled to Dhaka where he stayed with another relative for 9 months without incidents.

4.In January 2014 he returned to his home village to participate in JEL’s campaign for the 2014 General Election when he and his fellow JEL supporters were involved in violent clashes with the AL supporters during which he was struck by wooden sticks and was abducted until his parents had paid the ransom for his release.   

5.After the last incident the Applicant became fearful for his life, and so on 12 January 2014 he departed Bangladesh for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 August 2015 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview for various reasons before the Immigration Department.     

6.By a Notice of Decision dated 1 April 2016 the Director of Immigration (“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”).

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 the 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 reason for them to target the Applicant for harm given his low position in JEI or to have any further adverse interest in him after all these years, that there is no reliable evidence of any pursuit by the police or authorities against the Applicant for any criminal charges given the fact that he had been able to go about his life and political activities for almost 2 years without being arrested by the police and was able to leave the country in January 2014 without any problem, that in any event 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 169 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult 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.

8.By a Notice of Further Decision dated 12 July 2017 the Director again rejected the Applicant’s claim in the absence of any 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”).

9.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 13 April 2016, and for which he attended an oral hearing on before the Board during which he however declined to answer any questions from the Adjudicator for the Board regarding his claim despite being invited to do so. On 6 July 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found significant concerns over the credibility and reliability of the Applicant’s claim unexplained when he declined to answers questions raised by the Adjudicator during his appeal hearing that it doubted his claimed fear of harm from the AL supporters or of the police, that there is no reliable evidence that he was being pursued over any charges by the police between 2012 and 2014 when he was able to participate in JEL’s election campaign and to subsequently leave the country without any problem, and concluded that it would be safe for him to move safely to other part of Bangladesh away from his home district without any risk of being located by those AL people that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 17 July 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 attached copies of the decision and other documents previously submitted to the Director but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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.

12.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.   

13.The fact is that it has been established by both the Director and the Board in their respective 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, 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 22^nd 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