Imran Mohammad v. Torture Claims Appeal Board

HCAL 1359/2018

[2021] HKCFI 1637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1359 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 33-year-old national of Bangladesh who entered Hong Kong illegally on 4 June 2012 and was arrested by the police on 13 January 2013. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by the family of a murdered victim for refusing to be a prosecution witness or by the murderer if he did, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in West Dewbhog, Sadar, Fatullah, Narayanganj, Bangladesh. After leaving school, he worked as an electric welding apprentice in his home district.

3.One day in February 2012 while he was playing cricket with his fellow villagers, a fight broke out between Al Amin and Parvez on the field during which Al Amin was killed by Parvez who then fled from the scene.

4.Afterwards when the police arrived to investigate the murder, the Applicant left for his home without giving any statement to the police as he was afraid of Parvez, who was a local gangster and had warned him not to tell what he had seen, but when Al Amin’s family members later came to him to demand that he gave his witness statement to the police to assist them to arrest Parvez, the Applicant became fearful for his life due to threats from both sides, and so he fled from his home village to Dhaka, and on 12 May 2012 he departed Bangladesh for China, and from there he later sneaked into Hong Kong and raised his torture claim with the Immigration Department, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 26 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.Whilst being released on recognizance pending determination of his claim, the Applicant was informed by his friend in Bangladesh that Parvez had since been killed by Al Amin’s brother in revenge, but that Al Amin’s family were still looking for the Applicant as they were still angry with him for refusing to be a witness to the murder of Al Amin.      

6.By a Notice of Decision dated 27 November 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by Al Amin’s family upon his return to Bangladesh due to the absence of or low intensity and frequency of past ill-treatment from them, that Al Amin’s family had already taken their revenge against the Parvez and there should not be any further adverse interest in the Applicant after all these years, 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”) shows that reasonable internal relocation alternatives are available in Bangladesh with a large population of 158 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 parts of Bangladesh away from his home district such as Dhaka where he had stayed before without incidents and where it would be difficult if not impossible for Al Amin’s family to locate him.

8.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 20 June 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 9 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found on the facts of the Applicant’s own case that with the death of Parvez at the hands of Al Amin’s family and with Al Amin’s murder having been avenged that Al Amin’s family no longer required him to be a witness and hence there is no further reason to have any adverse interest in him after all these years or of any further risk of him being harmed by Al Amin’s family, and that in any event with state/police protection available to him if needed upon his return to Bangladesh that his claim for non-refoulement protection failed on the applicable grounds.   

10.On 11 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 simply stated that the decision is unreasonable in that the Board failed to consider all the matters raised in his claim and/or failed to give adequate reason for the decision without providing any details or particulars or elaboration how it was so, while at the hearing of his application he just stated that his problem still exists in his home country that he cannot go back. 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,

11.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.

12.In the Applicant’s case, the fact is that it has been established by the Director in the decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.     

13.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.

14.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 8^th day of June 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