Hossain Abir v. Torture Claims Appeal Board and Another

HCAL 116/2019

[2021] HKCFI 2984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 116 of 2019

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 31-year-old national of Bangladesh who last arrived in Hong Kong on 29November 2015 with permission to remain as a visitor up to 13 December 2015 when he did not depart and instead overstayed, and on 14 December 2015 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 certain local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”) and/or by the police and the authorities over certain false charges made against him by those AL supporters. He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Benodepur, Munshiganj, Bangladesh.  After leaving school he ran his own business selling mobile accessories in his home district, and supported BNP by regularly attendeding their local meetings and rallies.

3.In 2012 he started to receive threats from certain local AL supporters who demanded that he stopped supporting BNP and when he refused, they made threats to kill him, and he was detained by the police due to certain false charges being made against him by those AL people during which he was detained and beaten and was released only after his family had paid a bribe to the police. 

4.To avoid the threats from the local AL supporters and harassment from the local police, the Applicant in 2014 moved to Chittagong where he continued to run his business and took numerous business trips to China, India and Malaysia as well as a short trip to Hong Kong on 23 April 2015, but as the AL people had continued to make threats against him and his family, the Applicant felt it was no longer safe to remain in Bangladesh, and so on 29 November 2015 he travelled to Hong Kong where he overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).   

5.Whilst being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 24 June 2017 for drugs trafficking for which he was subsequently convicted and sentenced to prison for 24 months.       

6.By a Notice of Decision dated 16 March 2018 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim of fear of harm from those AL people or the police when he had since 2012 taken more than 20 trips out of Bangladesh without raising his claim anywhere until his second trip to Hong Kong in November 2015, that in any event assessed the level of risk of harm from those AL people, the police, and Rapid Action Battalion 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 targeted by the police or the authorities given that he was able to leave the country for those numerous business trips without any problems, 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 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 part of Bangladesh 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 him to be located.

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 19 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 2 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found numerous inconsistencies and contradictions in the Applicant’s evidence that seriously affected the credibility of his claim and which was further undermined by his failure to raise his claim all these years during his frequent business trips out of Bangladesh to other countries between 2012 and 2015 or during his first visit of Hong Kong in April 2015 until his subsequent trip in November 2015 and only up to 14 December 2015 after he had overstayed, that it found no reliable evidence of his alleged involvement in BNP or that he had been targeted by the AL people or the police or the Bangladesh authorities as alleged or at all or that he had been threatened by the AL people or that he had been arrested or detained by the police or the authorities, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant from any threats from the AL people upon his return to Bangladesh as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.       

10.On 11 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forth the following grounds for his intended challenge:

(1)     that the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim that their decisions were not reasonable or fair as required by the Wednesbury test;

(2)     that the Adjudicator failed to give the Applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)     that the Director failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case that he was tortured at the behest of the state law enforcement agencies as well as politicians for which the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence and which led to an unfair outcome of rejecting his non-refoulement claim;

(4)     that the Director failed to consider or give sufficient weight to the relevant COI which support the Applicant’s aversions that the police in his home country would not be able to protect;

(5)     that it was a clear case of unfair attitude shown by the Director against the Applicant which in itself is enough to render his decision void; and

(6)     that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision by failing to consider that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem which various human rights organizations have compiled reports which stated testament to the Applicant’s assertions which should render the decision of the Director unreasonable in the scope of public law.    

11.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did the Director or the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in their assessment of his claim, or how did the Adjudicator fail to give him time or opportunity to provide his evidence for his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 45 – 49 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 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.    

14.The fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm from the AL people in the Applicant’s claim if true 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.       

15.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. 

16.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 October 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