Efteker Karim v. Torture Claims Appeal Board

HCAL 2131/2018

[2021] HKCFI 2302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2131 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 39-year-old national of Bangladesh who entered Hong Kong illegally on 11 July 2013 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 some local supporters of rival political party Awami League (“AL”). He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Noabad, Union Sharshadi in Feni District, Bangladesh where he followed his family’s tradition in supporting the political party Bangladesh Nationalist Party (“BNP”) by joining its youth wing while at school. After leaving school he ran his own garment business, got married and raised a family with a daughter, and continued to support BNP.

3.In 2009 rival party AL won the general election and became the ruling party, and soon some local AL supporters started to approach the Applicant to invite him to join their party, and when he refused, they then threatened him and demanded money from him, and after one incident when he was beaten by those AL supporters and thereafter they made a false claim against him to the police for which he was detained and was later released only after a bribe had been paid, the Applicant became fearful for his life and fled to Chittagong where he stayed without incidents until 2013 when he then moved to Dhaka, and from there he departed Bangladesh on 25 June 2013 for China, and later he sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 4 September 2015 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”).

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 there is no evidence or reason for them to specifically target him for harm given that he was only a member of the youth wing with no official post in BNP, that in the absence of any official involvement that state 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 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area away from his home district in large cities such as Chittagong where he had stayed before without incidents and where it would be difficult if not impossible for those AL supporters to locate him.   

6.By a Notice of Further decision dated 21 April 2017 the Director also rejected the Applicant’s claim of risk of his absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) being violated in the absence of any additional facts or information from him which may be relevant to his BOR 2 claim and upon finding that he had failed to establish a personal and real risk of his such rights being violated upon his return to Bangladesh.

7.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 22 September 2015, and for which he attended an oral hearing on 26 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 27 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s claim that it did not consider him to be a credible witness, that his claimed ill-treatments did not reach the severity to be regarded as torture, and that in any event in the absence of any evidence of official involvement that state/police protection would be available to him upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.  

9.On 5 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board erred by failing to maintain high standard of fairness by not holding an oral hearing for his appeal so as to allow him an opportunity to put forward his case;

(2)  That the Board failed to maintain a minimum standard of procedural fairness required in decision making process and to act fairly; and

(3)  That the Board failed to take into consideration in its decision that the Applicant was not legally represented or that he has insufficient legal knowledge that could jeopardize his representation at the appeal process and for which he should have been advised that he could complain.   

10.His complaint under Ground (1) that the Board failed to hold any oral hearing to give him an opportunity to explain his case is plainly factually incorrect, as noted above the Applicant did appear before the Board on 26 February 2018 for his appeal during which he was assisted by an interpreter to present his case and to answer questions raised by the Adjudicator for the Board, and I simply do not see any basis or merits in this complaint of his.

11.As for his complaint under Ground (2) that the Board failed to apply high standards of fairness in its decision, in the absence of further details or particulars or elaboration for such bare assertions of the Applicant, I do not find this ground reasonably arguable either.  

12.Regarding his complaint in Ground (3) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable either.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

15.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 24 – 71 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 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 to challenge the finding of the Board.

16.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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

17.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.

18.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 12^th day of August 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