Halim Miah v. Torture Claims Appeal Board

HCAL 2188/2020

[2021] HKCFI 2630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 2188 of 2020

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 dismissed.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally on 30 April 2009 and was arrested by police on 26 June 2009. After he was referred to the Immigration Department for investigation, he raised a torture risk later taken as a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain villagers in his home village over some personal disputes. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Village Muriara, District Comilla, Bangladesh but was abandoned by his parents at the age of 9, and was raised by his foster family in Jalkuri, Dhaka where some of the fellow villagers frequently insulted and humiliated him about his family background which had led to frequent conflicts over the years when on some occasions the Applicant had been assaulted and was injured, for which he complained to the local police which had led to some of his assailants being arrested and charged and sent to prison, but which just led to further hostilities against him by those villagers seeking revenge upon their release from prison, and so in 2006 the Applicant fled to Chittagong and then Sylhet before departing Bangladesh on 7 July 2006 for Hong Kong where he stayed for 14 days as a visitor before returning to Bangladesh.

3.Upon his return to his home village in Jalkuri in Dhaka, one day he ran into some of those hostile villagers who proceeded to beat him with punches and kicks, and thereafter made false charges against him that he was subsequently arrested by police, and it was only after length interrogations that he was released without charge, but as he felt it was no longer safe to remain in Bangladesh, he therefore departed on 3 January 2009 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 18 March 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 found no substantial grounds for believing that his claimed risk of harm from his perceived enemies is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that his problems with his fellow villagers were private personal disputes without 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 166 million people spread across a vast territory of more than 140,000 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 such as Chittagong where it would be difficult if not impossible for those villagers to locate him.

6.On 30 March 2015 the Applicant lodged an appeal to the Torture Risks Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing before the Board on 12 January 2016 but elected not to give any further evidence for his claim. On 28 November 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board accepted the Applicant’s claim of his disputes with his fellow villagers but found from the information and materials provided by him to the Director that there was no evidence of any real intention of those villagers to seriously harm or kill him, that after all these years since his departure of Bangladesh that it is doubtful that they would still have any adverse interest in him, and that in any event it was a private personal matter between him and his fellow villagers without any official involvement that state/police protection would be available upon his return to Bangladesh as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by those villagers that his claim for non-refoulement protection failed on all applicable grounds.

8.Meanwhile on 24 January 2017 the Director in his own initiative invited the Applicant to submit 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 22 February 2017 rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Bangladesh.

9.On 16 October 2017 the Applicant again lodged an appeal to the Board against the further decision of the Director, for which he was clearly seriously late with the filing of his notice of appeal within 14 days of the notice of the decision as required under Section 37ZS(1) of the Immigration Ordinance, but somehow the Board proceeded to hold another oral hearing for his appeal on 8 June 2020 despite the late filing, of which I can only assume that the Board had for whatever reason decided to allow it, but at the hearing the Applicant did not submit any additional facts or representations for his BOR 2 claim. On 30 September 2020 his appeal was again dismissed by the Board which also confirmed the further decision of the Director.

10.In this decision the Board found the facts of the Applicant’ claim even on his own case do not engage the BOR 2 ground, and in any event as previously found that state protection and reasonable internal relocation would be available upon his return to Bangladesh that his claim also failed under BOR 2 Risk.  

11.On 2 November 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision but without putting forth 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.In the Applicant’s case, 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 his 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.Having considered both first and second decisions of 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 under all the applicable grounds.  

15.Furthermore, the Applicant on 9 June 2021 filed an affirmation requesting to withdraw his application as his problem has been resolved and that he wants to return to his home country.

16.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that the basis for his claim no longer exists, I accordingly accede to his request and dismiss his leave application.

Dated the 3^rd day of September 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